Without concrete legislative guidance, courts are left to a variety of unsatisfactory methods of determining the disposition of frozen embryos in dissolutions and custody disputes. Beginning in 1992, courts have been issuing problematic rulings that are reached through the application of three approaches: (1) the balancing-interests test; (2) the contemporaneous mutual consent approach; and (3) the contractual approach. These approaches are examined in this Comment through the lens of selected cases and the largely inequitable outcomes for parties are critiqued. Courts even lament the lack of statutory guidance in deciding these disputes but are resigned to employing these largely flawed, inequitable approaches. This Comment goes on to address the statutes already in place in a handful of states—but even where there are statutes in effect, they fail to adequately address the issue and guide the courts in determining the disposition of frozen embryos. After critically examining selected statutes from states with more progressive statutes, as well as those with more conservative guidelines, this Comment proposes a model statute for states to use as a framework when enacting new legislation to address this increasingly pressing issue. As case after case suggests, legislation is sorely needed to provide a guiding light for courts as couples litigate the disposition of frozen embryos. The model statute uses courts’ favored contractual approach and the current statutes, namely those enacted in California and Florida, as a starting point. This Comment concludes that the best protocol to resolve custody disputes is for states to enact legislation providing that contractual arrangements between couples beginning the in vitro fertilization process must be honored in the face of custody disputes and further suggests that required mediation be employed when the contract cannot be upheld. This approach endorses procreational autonomy and prevents the delivery of more inequitable results to parties litigating the disposition of their embryos during dissolutions.
Mary Joy Dingler, Family Law's Coldest War: The Battle for Frozen Embryos and the Need for a Statutory White Flag, 43 SEATTLE U. L. REV. 295 (2019).