In Vitro Fertilization

April 18, 2013

Robert Edwards, a Nobel prize winning pioneer of in vitro fertilization (IVF) technology died last week. His work and achievements contributed to the birth of the first “test tube baby” born in 1978. In vitro fertilization involves fertilizing a human egg outside of the body, in a laboratory. Once the egg is successfully fertilized, it is then transferred to a woman’s uterus, where the hope is that the egg will implant and result in a successful pregnancy.

The development of this procedure and technology was met with a host of ethical and legal concerns. The Catholic Church early on objected to the work, arguing that human life should only commence through intercourse, and not artificially outside the human body.  And of course, there are a wide variety of legal implications resulting from the use of this technology. With IVF, traditional notions of parenthood thrown aside – the woman donating eggs may not be the woman carrying the child, and may not even be the woman meant to be the eventual mother of the child. The technology has opened up many options for hopeful parents who, for one reason or another, may not be able to have children “the old fashioned way.” It has opened doors for same-sex couples and unpartnered/unmarried individuals to be able to have biological children, or at least genetically related children. But alternatively, there are ethical and social concerns to be considered as well. The Washington Post provides:

“At the same time, because women are paid to donate their eggs or offer their wombs to become surrogate mothers, worries have arisen that the costly procedure has turned reproduction into a commodity. Because infertility clinics are largely unregulated in the United States, critics say many push ethical boundaries. For example, some enable couples to choose the sex of the child.”


I ran the following search in WestlawNext Secondary Sources:

TI,PR(i.v.f. “in vitro fert!”)

In the first few results I found articles about health plan exclusions regarding IVF:

Health Plan that Specifically Excluded In Vitro Fertilization Did Not violate California Law,  2009 WL 3936285

Health Plan Not Obligated to Pay for Teacher’s Infertility Procedure9 No. 5 Andrews Health L. Litig. Rep. 5

There are several articles about employment related issues, including discussion about sex discrimination claims after women expressed intentions to undergo IVF, or took time off to do IVF treatments:

7th Cir: In Vitro Fertilization Not Gender-Neutral; Secretary May Proceed with Sex Bias Claim, 2008 WL 8850278

Bar Server Fired After Pursuing IVF Treatement Could Proceed With Her PDA, Title VII Claims, 2011 WL 8828854

There are also articles addressing problems that have arisen in the IVF process:

Couple to Sue for Emotional Damages from Embryo Mix-Up, 8 No. 10 Andrews Health L. Litig. Rep. 10

Fertility Clinic to Face Medical Malpractice Claim, Paretta v. Medical Office for Human Reprod., 10 No. 12 Andrews Health L. Litig. Rep. 5

Ability of Twins Posthumously Conceived Through in Vitro Fertilization to Qualify for Child Survivor Benefits Under the Social Security Act, 11-18-2011 U.S. Sup. Ct. Actions 4


Check out the Citing References from this recent Supreme Court decision: Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012)

Child of assisted reproductive technology, 2 Family Estate Planning Guide § 33:20 (4th ed.)

Legal Status of Posthumously Conceived Child of Decedent, 17 A.L.R.6th 593 (Originally published in 2006)

Genetics and reproductive science, Forensic DNA Evidence: Science and the Law § 13:15


My last thought was about IVF and divorce. Some couples might preserve embryos or preembryos resulting from IVF for later use. What happens to those embryos upon the decision of a couple to divorce? I ran the following search in WestlawNext:

i.v.f. “in vitro fert!” /250 divorc! dissol!

A brief glance at some of the initial cases:

J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001), holding: “former wife’s fundamental right not to procreate would be irrevocably extinguished if a surrogate mother bore former wife’s child through use of preembryos, and thus, Court would not force former wife to become a biological parent against her will; and (3) agreement regarding disposition of preembryos entered into at time IVF is begun is enforceable, subject to right of either party to change his or her mind about disposition up to point of use or destruction of any stored preembryos.”

Kass v. Kass, 235 A.D.2d 150, 663 N.Y.S.2d 581 (1997), holding: “(1) informed consent document and uncontested divorce instrument in which parties unequivocally stated their intent as to manner of disposition of cryopreserved fertilized human ova produced during in vitro fertilization procedure governed the disposition of those ova following parties’ divorce, and (2) informed consent document required ova to be used by IVF program for scientific purposes following parties’ divorce.”

J.B. v. M.B., 331 N.J. Super. 223, 751 A.2d 613 (App. Div. 2000) aff’d as modified, 170 N.J. 9, 783 A.2d 707 (2001), holding: “that in vitro fertilization (IVF) contract by which former husband and former wife agreed to relinquish control and ownership of embryos to IVF program if their marriage were dissolved was unenforceable.”

Some secondary source results include:

Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre–embryo, or Pre–zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253 (Originally published in 2001)

Erecting Women: Contracting Parenthood From Marriage To Divorce, Rachel Polinger-Hyman, Erecting Women: Contracting Parentenhood from Marriage to Divorce, 2 Hous. J. Health L. & Pol’y 241 (2002)

Disposition of Cryopreserved Preembryos after Divorce, Karissa Hostrup Windsor, Disposition of Cryopreserved Preembryos After Divorce, 88 Iowa L. Rev. 1001 (2003)