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I. INTRODUCTION
Over three thousand years ago, King Solomon was asked to adjudicate an unusual dispute.1 Two women had given birth during the night, but only one infant survived. With allegations of baby switching in the air, both women claimed to be the mother of the surviving child. With no way to verify either woman's account, King Solomon did a surprising thing. He ordered the baby split in two. At this, one woman immediately ceded her claim, seeking to preserve the baby's life; the other demanded the king's order be executed. Confident that he had determined the identity of the true mother, King Solomon ordered the baby given to the woman who had relinquished her claim, rather than see the baby die.
Today, the exploding field of assisted reproduction is raising Solomonic dilemmas of its own. Whereas in biblical times, couples having difficulty conceiving had limited options, today a menu of medical maneuvers exists to facilitate the union of sperm and egg.2 In Vitro Fertilization - in which eggs are extracted from a woman's body, fertilized in a petri dish, and then reinserted back into the womb - is one of the oldest and most commonly performed procedures.3 While numerous eggs - up to 15 or 20 - may be extracted and fertilized, no more than two or three embryos are usually implanted at a time.4 Frequently, excess embryos are frozen, ready to be inserted at a later date if the current effort at pregnancy fails.
But what happens if, after the embryos are frozen, but before they can be implanted, the couple divorce and disagree over what should be done with the frozen embryos? What happens when one ex-spouse wants the embryos destroyed, while the other wants the embryos brought to term? To date, the highest courts in four states have addressed this issue.5 While the posture and analysis in each of these cases differ, the results are identical. In each case, the party seeking destruction of the embryos wins.
Why is this so? The result is driven, I believe, by the courts' peculiar evaluation of the interests at stake. When faced with one spouse's interest in procreating versus the other spouse's interest in avoiding procreation, the courts find that the interest in...