St. Mary's Law Journal


Lynne M. Thomas


In vitro fertilization (“IVF”) has become almost commonplace in society. The widespread utilization of IVF and cryopreservation raises new questions with respect to ownership and disposition of embryos. This legal confusion may be addressed by either crafting specific regulations for that particular technology as its implications become apparent, or by applying current law. IVF first began in Great Britain, and the British Parliament passed a law mandating destruction of abandoned frozen embryos five years after cryopreservation. Destruction of the embryos potentially caused the loss of reproduction capability for those persons whose embryos were destroyed. While the number of abandoned frozen embryos in the United States remains unknown, this lack of statistical documentation disguises the need for consideration of abandoned frozen embryos as they become a growing concern for clinics, parents, and society. Whether current laws apply and prevent the destruction of frozen embryos, or whether new laws must be promulgated by state legislatures to address the issue will largely depend on the legal status accorded to the embryos. Three possible views have emerged as to possible legal status: as being alive, as property, or as neither life nor property but deserving of “special respect.” The classification argument becomes even more critical when frozen embryos are abandoned. As the problem continues, clinics may be forced to turn to Texas law to determine how to resolve questions of storage and potential disposal. Clinics currently resolve these questions in a property context; thus, the natural fit would be to turn to the Texas Property Code. Yet, the Property Code requires clinics to pass the burden to the State of Texas. The question the Texas legislature must answer is whether the role of custodian or destroyer of embryos is an appropriate one for the State of Texas.


St. Mary's University School of Law