The Custody Battle over Cryogenically Preserved Embryos after Divorce: Advocating for Infertile Women’s Rights


This paper focuses on the struggles that infertile women face to achieve motherhood because their rights are underrepresented in the American court system. It specifically centers on how the process of in vitro fertilization (IVF) helps infertile women conceive children, but then details the problems that increasing technology now causes for these women after they freeze embryos and then divorce. Because the courts of only four states have determined who gets custody of these embryos after a divorce, and because the divorce rate and the number of couples utilizing IVF are increasing, future states will likely be forced to answer the same question in the future. Until now, the rights of female participants wishing to utilize the frozen embryos have not been adequately protected or recognized.

This paper argues that the female participant deserves full custody of IVF produced cryogenically preserved embryos after a divorce, because it is the only feasible way for her to overcome her disability of infertility and conceive children who are genetically related to her. Part I of this paper explains the detailed process and technique of IVF that helps women overcome their disability of infertility, including the various benefits and risks that the women face. Next, Part II analyzes the case law on this topic and explains the holdings and reasonings of the courts that have already tackled this issue and have failed to protect the infertile women’s rights. Lastly, Part III explains why future decisions should grant custody of the cryogenically preserved embryos to women because of their “sweat equity” in the process and because these embryos provide the best chance for these infertile women to become mothers.


Family Law | Health Law and Policy | Law and Gender | Medical Jurisprudence | Science and Technology Law | Sexuality and the Law

Date of this Version

October 2005