What to Expect When Contracting for Embryos

Courts and legislatures constantly adapt to new technologies that bring with them new types of legal disputes. Today, one such dispute arises when two people who have created human embryos using their own genetic material are later unable to agree on the appropriate fate of the embryos. This Note explores how state courts and legislatures have addressed these disputes. Embryo disputes are unlike any other as they involve the frozen potential for life and the often-heartbreaking circumstances in which once hopeful would-be parents find themselves. The result has been a wide range of often unpredictable possibilities—with courts doing everything from trying to decipher informed-consent forms to determine the parties’ intent at the time they created the embryos to creating new balancing tests involving fertility that will only ever apply in embryo disputes. In many cases, the fate of the embryos depends on what state will have jurisdiction over the dispute. Although it may seem as though there must be a simple one-size-fits-all solution, this Note does not advocate for one approach over another. Each solution carries with it its own flaws, and with such an exceptional type of dispute, no one solution succeeds in providing a definitively “right” result, moral, or otherwise.