When a couple creates embryos through IVF and later separates, divorces, or simply disagrees about what to do with the surplus, the law is asked to decide what those embryos are and who controls them. Three decades of cases have produced no consensus. State courts have variously applied contract law, balancing tests, contemporaneous-consent rules, and, increasingly, frameworks that treat embryos as having interests of their own. The romantic partnership, in creating the embryos, made a planning commitment whose terms it did not fully understand. The dispute, when it comes, is a renegotiation under conditions neither partner anticipated.
Law 4 at the collective scale is the planning law. Embryo disposition disputes are what happens when partnership-level plans encounter the ambiguity of an entity that resists categorization. Approximately a million cryopreserved embryos are currently in storage in the United States. Most will eventually be used, donated, discarded, or transferred to research. A meaningful fraction will be subject to dispute, often years after creation, when the partnership that produced them has dissolved or transformed.
The leading cases trace the difficulty. Davis v. Davis, decided by the Tennessee Supreme Court in 1992, established the balancing test: courts weigh the interests of the party seeking to use the embryos against the interests of the party seeking to prevent use, with a presumption against forced procreation. Kass v. Kass, in New York in 1998, gave weight to the couple's prior written agreement. A.Z. v. B.Z., in Massachusetts in 2000, declined to enforce a prior agreement on public-policy grounds, holding that no person should be compelled to become a parent against their will. Reber v. Reiss, in Pennsylvania in 2012, allowed a cancer survivor to use the embryos over her ex-husband's objection because they were her only chance at biological parenthood. The cases do not align, and the trajectory of the law has been toward more, not less, complexity.
The newer wrinkle is the legal status of the embryo itself. The Alabama Supreme Court's 2024 decision in LePage v. Mobile Infirmary Clinic held that frozen embryos were children for purposes of the state's wrongful-death statute. The decision was based on a constitutional amendment that recognized the sanctity of unborn life. The immediate effect was a halt to IVF practice in the state until the legislature passed a patch. The underlying question — whether embryos can be the subject of property law, contract law, family law, or some sui generis framework — remains unresolved. Different states are converging on different answers, and a couple that created embryos in one state and later moved to another may find the legal status of those embryos has changed beneath them.
For partnerships, the practical implication is that the agreements signed at clinic intake are not reliably enforceable. Most clinics require couples to specify, in advance, what should happen to embryos in the event of death, divorce, or disagreement. These forms are often signed quickly, under emotional conditions, with attention focused on the cycle ahead rather than on the contingencies they describe. When the contingency arrives, the form may or may not be honored. Courts in states applying the contemporaneous-consent rule will not enforce the form against a partner who has changed his or her mind. Courts in states applying contract law usually will.
The relational dynamics of these disputes are distinctive. Embryos created during a romantic partnership embody, in a literal genetic sense, the joint commitment that the partnership was at the moment of creation. When the partnership ends, the embryos persist, carrying the genetic signature of a relationship that no longer exists. Disposition decisions are therefore not only about the embryos but about what the former partners are willing to allow the other to do with the residue of the partnership. The party seeking to use the embryos is asking for the right to bring a child into the world without the other party's ongoing involvement. The party seeking to prevent use is asserting the right not to become a parent. Both claims have weight; neither is obviously stronger; courts have struggled because the underlying values genuinely conflict.
Donor and gestational arrangements add further complexity. When one or both gametes came from a donor, the dispute may involve the donor's interests as well. When a gestational carrier was contemplated, the embryos may have been created with a specific reproductive plan that no longer applies. When the partnership was same-sex and used a known donor, the post-separation landscape may involve a donor who has views about disposition.
The collective dimension of these disputes is that they are accumulating. The first IVF cycles in the United States occurred in the early 1980s; the first major disposition cases reached appellate courts in the 1990s; the volume has risen with the volume of IVF. As the technology becomes more common and the embryos in storage more numerous, the dispute rate will continue to rise, and the legal incoherence across states will become a larger feature of the landscape. Couples planning IVF in 2025 should expect, with non-trivial probability, to face a disposition decision under conditions different from those they currently anticipate. Planning for that contingency in advance — with explicit, dated, and legally reviewed agreements — is the most reliable available protection, even though no protection is complete.