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Dan and Diane marry and want to have children. Unfortunately, the couple discovers they have fertility issues. In order to increase their chances of having a child, they go through in vitro fertilization (IVF). The doctors give Diane hormones to retrieve as many eggs as possible and, therefore, create as many embryos as possible. It works, and they have nine Gable embryos. Two embryos are transferred to Diane. Unfortunately, she does not get pregnant. Their relationship begins to deteriorate and, before they try another transfer, they split up. Diane files for divorce, and they manage to resolve all of the issues except one: What happens to the seven Gable embryos remaining?
The lawyers representing Dan and Diane may not have even known about the embryos when the case was filed. Infertility is a profoundly private experience for many people. Clients will sometimes not tell their attorneys about unused frozen embryos unless they are specifically asked about them. But what is the court going to do with these embryos? Are they property? Are they persons? Is there another category? Is the issue eventually going to be moot? How long can the embryos be stored and still be capable of producing a child?
Every time a couple or a single person goes through IVF in order to have a child, embryos are created. This is true whether the couple is married, unmarried, or same-sex, or whether the indiGdual is a single person trying to become a parent through assisted reproduction. In the vast majority of cases, excess embryos are created, which are not immediately used. Fertility clinics across the United States are reporting a steady increase in IVF cycles, which means more embryos are being created each year. The most recent statistics from the American Society for Reproductive Medicine ( ASRM) estimate that at least 600,000 frozen embryos are currently in storage in the United States.1 (These are the numbers reported to the CDC from reporting fertility clinics. Many professionals in the field believe the number is more than one million.) Frozen (cryopreserved) embryos can survive and be Gable for a very long time. There is at least one case in the United States of frozen embryos that were stored for 20 years, then transferred and...