Using Contract Law to Resolve Frozen Pre-Embryo Disputes

Allyson Wade

In vitro fertilization is important in the lives of many families. In 2019, approximately 2.1% of children born were conceived through assisted reproductive technology (“ART”), mostly through IVF. Those IVF treatments create multiple pre-embryos, but couples are often able to conceive without using all of the pre-embryos created. The remaining pre-embryos are usually frozen for later use. Those frozen embryos can remain viable for a long time, at least as long as twenty-seven years. But as couples who have both contributed gametes to create frozen pre-embryos disagree on whether to use or dispose of them, courts are being asked to decide who gets the pre-embryos and how, if at all, those preembryos can be used. In a case of first impression, the Maryland Court of Special Appeals recently addressed the novel issue of how to resolve the disposition of frozen pre-embryos upon divorce. The court adopted a blended contractual and balancing approach, whereby the court would enforce any prior agreement regarding the disposition of the pre-embryos. When there is no prior agreement between the parties, the court held it would balance the interest of one party to avoid procreation against the interest of the other party to have a biological child. This Comment will first describe the facts presented in Jocelyn P. v. Joshua P., the three major approaches taken by courts who have addressed pre-embryo disputes, and the approach the Maryland Court of Special Appeals ultimately adopted. This Comment will then explain why the Maryland Court of Special Appeals correctly adopted the blended contractual and balancing approach, rather than striking down such contracts for violating public policy. Lastly, it will argue that the Maryland Court of Special Appeals should have gone further in upholding contracts regarding the disposition of pre-embryos and engaged in a more thorough analysis of contract doctrine.