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Assisted Reproductive Technologies and the Pregnancy Process: Developing an Equality Model to Protect Reproductive Liberties

Published online by Cambridge University Press:  24 February 2021

Judith F. Daar
Judith F. Daar*
Affiliation:
Whittier Law School
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Extract

The world of assisted reproductive technologies (ART) has forced our society to confront scenarios that were unimaginable a mere quarter century ago. The birth of Louise Brown in 1978, the first child conceived through in vitro fertilization (IVF), introduced to the world the notion of asexual reproduction. The bitter battle over the parental status of Baby M., a baby born by a surrogate mother in the early 1980s, engendered a public debate over the interaction between contract law, family law and reproductive liberties that still rages today. In 1992, the highly publicized divorce of Junior and Mary Sue Davis focused national attention on the issue of proper disposition of frozen embryos. This case highlighted the fact that conception and pregnancy could be separated by a significant amount of time as a result of cryopreservation. While each of these events marked a step forward in the march toward total technological mastery of human reproduction, they also suggest that future struggles involving ART will grow increasingly fierce and complicated as our fund of knowledge increased. This Article suggests that current disputes over the disposition of frozen embryos are emblematic of that struggle.

Type
Articles
Information
American Journal of Law & Medicine , Volume 25 , Issue 4 , 1999 , pp. 455 - 477
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1999

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Footnotes

†

An earlier version of this Article was presented on March 26, 1999, at the University of Texas Journal of Women and the Law Symposium, “Approaching the Millennium: Emerging Issues in Bioethics & Information Technology.”

References

1 See Jennifer Gunning & Veronica English, Human in Vitro Fertilization 9-10 (1993); see also Judith F. Daar, The Future of Human Cloning: Prescient Lessons From Medical Ethics Past, 8 S. Cal. Interdisciplinary L.J. 167, 175-78 (1998) (discussing the politics and science surrounding the development of in vitro fertilization (IVF)).

2 See In re Baby M., 537 A.2d 1227, 1246-51 (N.J. 1988). See generally Colloquy: In Re Baby M., 76 Geo. L.J. 1717 (1988) (a collection of several essays expressing views on the Baby M. case and IVF issues).

3 See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

4 Throughout this Article the term embryo is used to refer to the product of gametic union from fertilization up until implantation in the uterus and the appearance of the embryonic axis, rather than the technically more accurate term preembryo. The preembryonic stage lasts until 14 days after fertilization, at which time the developing organism is referred to as an embryo. The embryo is renamed a fetus at the end of the seventh or eighth week of development. See Ethics Comm, of the Am. Fertility Soc’y. Ethical Considerations of Assisted Reproductive Technologies, Fertility & Sterility, Nov. 1994, at 124S (Supp. 1 1994). All of the reproductive technologies discussed herein focus on the early, preimplantation organism. For a discussion of the biological difference between a preembryo and an embryo, see Robertson, John A., In the Beginning: The Legal Status of Early Embryos, 76 Va. L. Rev. 437, 441-42 (1990)CrossRefGoogle ScholarPubMed.

5 See Davis, 842 S.W.2d at 589.

6 696 N.E.2d 174 (N.Y. 1998).

7 See id. at 178.

8 See id. at 180.

9 See id. at 182.

10 See Letter from Lee B. Gaskin, Judge, New Jersey Superior Court, to Eric Spevac & Amy C. Goldstein, Attorneys, RE: J.B. v. M.B., FM-04-95-97 (N.J. Super. Ct. Ch. Div. Camden County) 2-4 (Sept. 28, 1998) (unpublished opinion) (on file with author) [hereinafter J.B.].

11 See id. at 8.

12 See id. at 4.

13 See id. at 8.

14 See id. at 4-5.

15 See id. at 8 (borrowing its reasoning from the Davis decision).

16 See 696 N.E.2d 174, 180 (N.Y. 1998).

17 See J.B., supra note 10, at 8.

18 See id. at 4.

19 See Kass, 696 N.E.2d at 175.s

20 See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976) (holding that a man has no right to veto a woman’s choice to have an abortion); Davis, 842 S.W.2d at 598-603 (recognizing the reproductive rights of both gamete donors).

21 See, e.g., Davis, 842 S.W.2d at 588-89 (awarding custody of frozen embryos to husband who wished to avoid procreation and where no contract between the parties governed the disposition of the embryos); A.Z. v. B.Z., No. 15-008-96, slip op. at 28 (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996), appeal docketed, SJC-08098 (Mass. argued Nov. 5, 1999) (awarding embryos to husband despite multiple contracts that provided all embryos be returned to wife for implantation); Bohn v. Mobley, No. 97-16310-CK, slip op. at 11 (Livingston County Cir. Ct. Mich. July 15, 1998) (upholding a husband’s right not to procreate, absent a clear contract to the contrary).

22 See infra note 184.

23 See infra Part II.B.

24 696 N.E.2d at 179.

25 See Katz, Katheryn D., The Clonal Child: Procreative Liberty and Asexual Reproduction, 8 Alb. L.J. Sci. & Tech. 1, 44 (1997)Google ScholarPubMed (“[L]iberty secured by the Constitution … does not import an absolute right in each person to be … wholly freed from restraint” (quoting Jacobson v. Massachusetts, 197 U.S. 11,26(1905))).

26 See id.

27 See Kass, 696 N.E.2d at 174.

28 See infra Part IV.C.

29 See Gunning & English, supra note 1, at 18-22; Daar, supra note 1, at 175-77.

30 See Gunning & English, supra note 1, at 73-74; Daar, supra note 1, at 175-77.

31 See Linda R. Mohr et al., Deep-Freezing and Transfer of Human Embryos, 2 J. In Vitro Fertilization & Embryo Transfer 1,1-2 (1985).

32 See Smith v. Hartigan, 556 F. Supp. 157, 163 (N.D. 111. 1983) (dismissing challenge to an Illinois law requiring that “care and custody” of an IVF embryo rested with the person performing the IVF procedure (presumably the doctor), until the embryo was actually implanted in the woman).

33 842 S.W.2d 588 (Tenn. 1992).

34 See id. at 591-92

35 See id.

36 See id. at 589.

37 See id. at 589-90.

38 See id. at 590.

39 See id. at 604. Originally, the trial court awarded custody of the embryos to Mary Sue Davis based on its determination that the embryos were “human beings” from the moment of fertilization. See id. at 589. The court of appeals reversed the trial court, finding that Junior Davis had a “constitutionally protected right not to beget a child where no pregnancy has taken place.” Id. The court of appeals then remanded the case to the trial court for entry of an order vesting the parties with joint control and equal voice over disposition of the embryos. Id. This solution hardly seemed sensible because the couple had apparently spent years fighting over control of the embryos and were not likely to reach agreement.

40 See id. at 604.

41 See id.

42 The growing phenomenon of postmortem sperm and egg retrieval raises the possibility that the Davis focus on donor preferences will be useful in resolving disputes between family members following the death of a loved one. For a discussion of postmortem sperm procurement, see generally Susan M. Kerr et al., Postmortem Sperm Procurement, 167 J. Urology 2154 (1997); John A. Robertson, Posthumous Reproduction, 69 Ind. L.J. 1027 (1994). What if a wife were to demand that physicians collect the sperm of her just-deceased husband, claiming that he had recently reversed himself on a lifelong pledge to remain childless? There are currently no legal restrictions on such postmortem sperm retrievals, allowing for the possibility that a man’s lifetime preferences can be thwarted after his death. See Anne Reichman Schiff, Arising From the Dead: Challenges of Posthumous Procreation, 75 N.C.L. Rev. 901, 923 (1997). Using the Davis “preferences of the progenitors” test, if a man’s parents could show his preference was to never become a father under any circumstances, a court could more easily block the unauthorized use of sperm, even after the death of the progenitor. See Davis, 842 S.W.2d at 604.

43 See Coleman, June, Playing God or Playing Scientist: A Constitutional Analysis of State Laws Banning Embryological Procedures, 27 Pac. L.J. 1331, 1348 (1996)Google ScholarPubMed (discussing substituted judgment in the context of assisted reproductive technology (ART)).

44 See Davis, 842 S.W.2d at 597.

45 See id. at 604.

46 See id. at 597.

47 See John A. Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407,416-17(1990).

48 See 842 S.W.2d at 604.

49 See id.

50 See id.

51 See id.

52 See id. at 603-04.

53 See id. at 604.

54 See Kass v. Kass, 696 N.E.2d 174, 179 (N.Y. 1998). The Massachusetts Supreme Judicial Court is currently considering this issue. See A.Z. v. B.Z., No. 15-008-96, slip op. (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996), appeal docketed, SJC-08098 (Mass. argued Nov. 5, 1999).

55 See Kass, 696 N.E.2d at 175.

56 See id. at 175-76.

57 See id. at 176.

58 See id. at 177.

59 See id. at 179 (stating that “disposition of these pre-zygotes does not implicate a woman’s right of privacy or bodily integrity in the area of reproductive choice”).

60 See id. at 177.

61 See Roe v. Wade, 410 U.S. 113, 159 (noting that a woman’s right to privacy may not be considered in isolation, because she carries an embryo and later a fetus); Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992) (noting that a pregnant woman’s liberty is uniquely at stake, because she is subject to physical constraints that factor heavily on the state’s role in limiting her right to abortion).

62 See Roe, 410 U.S. at 159.

63 See id. at 153.

64 See 505 U.S. 833, 845-46 (1992). One should note that the Casey decision was decided by a plurality in a highly divided Supreme Court. See Casey, 505 U.S. at 843-903. Deciding Justices O’Connor, Kennedy and Souter, joined by Justice Blackmun, affirmed Roe, recognizing that a woman had a fundamental right to an abortion. See id. at 844-53. Justice Stevens went even farther, recognizing that a woman had a liberty interest in bodily integrity that extended beyond abortion into other “matters of the highest privacy and the most personal nature.” See id. at 915 (Stevens, J., concurring in part and dissenting in part). However, Justices Rehnquist, White, Scalia and Thomas, while affirming the right to procreation set forth in Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942), found that Roe's essential holding that women have a fundamental right to an abortion was wrong, and was based on incorrect interpretation of precedents. See Casey, 505 U.S. at 950-53 (Rehnquist, J., concurring in part and dissenting in part).

65 See Casey, 505 U.S. at 847; Roe, 410 U.S. at 153.

66 See Loving v. Virginia, 388 U.S. 1, 12 (1967).

67 See Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942).

68 See Eisenstadt v. Baird, 405 U.S. 438,453-54 (1972).

69 See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

70 See Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

71 See Roe,410 U.S. at 153.

72 See id.

73 505 U.S. at 852.

74 No. 19658/93, 1995 WL 110368, at *3 (N.Y. Sup. Ct. Jan. 18, 1995), rev'd, 235 A.D.2d 150, (N.Y. App. Div. 1997), affd, 696 N.E.2d 174 (N.Y. 1998).

75 Id. at *3.

76 See id.

77 See id.

78 See, e.g., Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993) (noting that all parties intended the in vitro process to produce a child in a case involving disputed custody between an egg donor and the woman in whom the fertilized egg gestated).

79 See Kass v. Kass, 696 N.E.2d 174, 175-76 (N.Y. 1998) (explaining the basic in vitro process undergone by Maureen Kass).

80 See Kass, 1995 WL 110368, at *3.

81 U.S. Const, amend. XIV, § 1.

82 See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies 525726 (1997) (discussing the history and meaning of the Equal Protection Clause).

83 See Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942).

84 See id. at 541; see also Chemerinsky, supra note 82, at 525-726 (discussing the Equal Protection Clause in greater depth).

85 See Chemerinsky, supra note 82, at 529. Erwin Chemerinsky explains that under a strict scrutiny analysis, “[t]he government must have a truly significant reason for discriminating and it must show that it can not achieve its objective through any less discriminatory alternative.” Id. This burden, according to Chemerinsky, means that “[s]trict scrutiny is virtually always fatal to the challenged law.” Id.

86 See id.

87 See generally Ethics Comm, of the Am. Fertility Soc’y, supra note 4, at 3S-7S (discussing the inclusion of noncoital and donor-assisted reproduction within the constitutional right to procreate).

88 One court has, in dicta, suggested that the use of assisted reproductive technology (ART) would be included within the protections afforded coital reproduction. See Lifchez v. Hartigan, 735 F. Supp. 1361, 1377 (N.D. 111. 1990). In Lifchez, an Illinois district court held a state abortion law unconstitutional, which prohibited the sale of or experimentation on human fetuses. See id. In addition to finding the statute void for vagueness, the court held that the statutory language could be construed to limit unconstitutionally a woman in her range of reproductive choices, including embryo transfer. See id. Citing Roe v. Wade, the court remarked: “It takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy.” Id.

89 A failure to extend procreative liberties and rights to those employing noncoital reproductive methodologies might be construed as a denial of equal protection under the Constitution. See Kass, No. 19658/93, 1995 WL 110368, at *2-*3 (N.Y. Sup. Ct. Jan. 18, 1995), rev'd, 235 A.D.2d 150, (N.Y. App. Div. 1997), ajf’d, 696 N.E.2d 174 (N.Y. 1998). But see Maura A. Ryan, Cloning, Genetic Engineering, and the Limits of Procreative Liberty, 32 Val. U.L. Rev. 753, 770-71 (1998) (arguing that the nuanced and complicated issues created by ART do not lend themselves to across-the-board applications of procreative rights language). In situations where individuals engage the assistance of gametic donors or surrogates to reproduce, the argument for equal protection of procreational liberties may be slightly less compelling. See Ethics Comm, of the Am. Fertility Soc’y, supra note 4, at 3S-7S. For example, if a couple were to contract with a surrogate to carry their genetic embryo, the couple should not have the right to choose abortion for that surrogate simply because they provided the gametic material. Likewise, a couple should not prevent a surrogate from aborting, as it is the surrogate and not the couple whose fundamental right to control procreational autonomy is at stake.

Perhaps a closer question is whether an individual has a constitutionally protected right to enlist the assistance of donors and surrogates to pursue reproduction. To the extent that the desired end result of parenthood is the same in both cases, an argument can be made that the fundamental right to procreate should apply equally to coital and noncoital reproduction. See Wu, Lawrence, Family Planning Throughout Human Cloning: Is There a Fundamental Right?, 98 Colum. L. Rev. 1461, 1486-88 (1998)CrossRefGoogle Scholar. At least one court has rejected the notion that a couple has a constitutionally protected right to hire a surrogate mother and to enforce her agreement to give up custody of the child at birth. See In re Baby M., 537 A.2d 1227, 1253-55 (N.J. 1988). For a discussion of inclusion of noncoital and donor-assisted reproduction within the right to reproduce, see Ethics Comm, of the Am. Fertility Soc’y, supra note 4, at 3S-7S.

90 See Chin, Roger J., Assisted Reproductive Technologies: Legal Issues in Procreation, 8 Loy. Consumer L. Rep. 190, 190 (1996)Google Scholar (arguing that a state’s interest in the fetus or the future family outcome is not sufficiently compelling to justify the denial of new, noncoital reproductive technologies in procreation). See generally Wu, supra note 89, at 1461-91 (analyzing procreative liberty jurisprudence and arguing that the right to procreate includes all reproductive technologies).

91 See Carey v. Population Services Int’l, 431 U.S. 678, 687 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 486-86 (1965).

92 405 U.S. at 453.

93 States that have legislated in the area of ART include New Hampshire, N.H. Rev. Stat. Ann. § 168-B (1994 & Supp. 1998), Florida, Fla. St AT. Ann. § 742.15 (1998), and Virginia, Va. Code ANN. § 54.1-2971 (Michie 1998). See generally Judith F. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 Hous. L. REV. 609 (1997) (reviewing the extent of state and federal regulation of reproductive technologies).

94 See supra notes 6-24 and accompanying text.

95 The structure of this argument is derived from the Supreme Court’s decision in Shelley v. Kraemer, 334 U.S. 1 (1948), where the Court held that state courts cannot enforce private, racially restrictive covenants. State courts and judicial officers enforcing such restrictions, the Court concluded, constituted “action of the State within the meaning of the Fourteenth Amendment.” Id. at 14.

96 See Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992).

97 See Kass v. Kass, 696 N.E.2d 174, 181-82 (N.Y. 1998); Davis, 842 S.W.2d at 604; see also Carey v. Population Services lnt’1, 431 U.S. 678, 687 (1977) (holding that regulations imposing burdens on the decisions whether to bear or beget a child may only be justified where there are compelling state interests and where the regulations are narrowly tailored to serve those interests).

98 See Carey, 431 U.S. at 687.

99 381 U.S. 479 (1965).

100 405 U.S. 438(1972).

101 431 U.S. 678(1977).

102 See Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992) (invalidating spousal notification requirement as an undue burden on a woman’s right to an abortion); Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976) (striking down spousal consent requirement in state abortion law).

103 See Casey, 505 U.S. at 895; Danforth, 428 U.S. at 71.

104 See Danforth, 428 U.S. at 71 (explaining that: “Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor”).

105 See Kass v. Kass, 696 N.E.2d 174, 181-82 (N.Y. 1998) (finding a woman’s rights to privacy and bodily integrity are not implicated prior to implantation of the embryo); Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992) (distinguishing the embryo disposition disputes from abortion disputes on the basis that the former does not raise concerns for a woman’s bodily integrity); see also Robertson, supra note 4, at 454.

106 See Ethics Comm, of the Am. Fertility Soc’y, supra note 4, at 3S-7S.

107 See Davis, 842 S.W.2d at 604.

108 See Roe, 410 U.S. at 163; Casey, 505 U.S. at 846.

109 See 505 U.S. at 860. The Casey plurality declined to extend Roe's ruling that fetal viability begins in the third trimester, stating that:

[Viability marks the earliest point at which the State’s interest in fetal life is [compelling] …. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in the pregnancy.

Id.

110 See id. at 846.

111 See Robertson, supra note 4, at 494 (explaining that many IVF programs offer embryo storage for long periods of time).

112 See James E. Bailey, An Analytical Framework for Resolving the Issues Raised by the Interaction Between Reproductive Technology and the Law of Inheritance, 47 DEPAUL L. Rev. 743, 790-91 (1998) (contemplating the inheritance rights of an embryo implanted after the male partner’s death).

113 See Casey, 505 U.S. at 849, 869; Roe, 410 U.S. at 162-63.

114 See Kass v. Kass, No. 19658/93, 1995 WL 110368, at *2 (N.Y. Sup. Ct. Jan. 18, 1995), rev’d, 235 A.D.2d 150 (N.Y. App. Div. 1997), aff’d, 696 N.E.2d 174 (N.Y. 1998).

115 See id. at *5.

116 See Roe, 410 U.S. 113, 163 (1973) (discussing the trimester approach to abortion jurisprudence).

117 See Gunning & English, supra note 1, at 20 (discussing the conditions and duration under which embryos are sustained in vitro); Mohr et al., supra note 31, at 9 (discussing IVF and the transfer of fresh human embryos versus frozen human embryos).

118 See Davis v. Davis, 842 S.W.2d 588, 601-02 (Tenn. 1992).

119 See Roe, 410 U.S. at 153.

120 See Janet E. Gans Epner et al., Late Term Abortion, 280 JAMA 724, 725 (1998) (discussing the human gestation period).

121 Under this scenario, a pregnant woman could conceivably seek the services of a surrogate to gestate the frozen embryos within the nine-month time-frame. This would be consistent with the notion that a man who participates in an ART program consents to the implantation of all embryos that are formed during any single cycle.

122 No. 15-008-96, slip op. (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996), appeal docketed, SJC-08098 (Mass. argued Nov. 5, 1999).

123 See id. at 4.

124 See id.

125 See id. at 2-3.

126 See id. at 14.

127 See id.

128 See id. at 14-15.

129 See id.

130 See id. at 15.

131 See id.

132 See id. at 27-28.

133 See id. at 23-28.

134 See Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).

135 See Kass, 696 N.E.2d at 174.

136 See John D. Calamari & Joseph M. Perillo, The Law of Contracts 148 (4th ed. 1998) (noting that: “The Plain Meaning Rule states that if a writing, or the term in question, appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any kind.”). The Calamari and Perillo hornbook stresses that the plain meaning rule has been “properly condemned” because the meaning of words vary with the experiences of their readers, including judges. See id.

137 See Kass, 696 N.E.2d at 176.

138 Id.

139 Id. at 176-77.

140 See id. at 180.

141 See id. at 181.

142 See id.

143 See id. at 181-82.

144 Id. at 182 (citing Kass v. Kass, 235 A.D.2d 150, 160 (N.Y. App. Div. 1997)).

145 Kass 696 N.E.2d at 181.

146 See id.

147 See id. at 181.

148 See id. at 180 (stating that “[w]hether an agreement is ambiguous is a question of law for the courts”). Ambiguity should be determined by “examin[ing] the entire contract and considering] the relation of the parties and the circumstances under which it was entered.”); cf. E. Allen Farnsworth, Contracts § 5.1 (3d ed. 1999) (stating that “parties are free to make such agreements as they wish, and courts will enforce them without passing on their substance”).

149 See Roe v. Wade, 410 U.S. 113, 164 (1973) (using a similar argument in establishing timeframes to govern abortion).

150 See Calamari & Perillo, supra note 136, at 146.

151 No. 15-008-96, slip op. (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996), appeal docketed, SIC-08098 (Mass. argued Nov. 5, 1999).

152 See discussion supra Part III.

153 See A.Z. v. B.Z., No. 15-008-96, slip op. at 8-11.

154 See id. at 8-11.

155 B.Z., the wife, wanted to thaw and implant the embryos while her husband wanted to prevent her from utilizing the embryos, presumably favoring destruction or donation for research. See id. at 27.

156 The Finding of Facts did indicate that the husband was not altogether familiar with the forms, stating that no one at the IVF clinic ever explained the IVF consent forms to A.Z., and that A.Z. “never reviewed with anyone the available choices of disposition, storage, destruction or donation nor of the decision of how to handle the preembryos if one party dies, the parties separate or divorce.” Id. at 11. The court’s decision, however, does not seem to have been based on issues of informed consent but on the contract principle of changed circumstances. See id. at 24-25.

157 See id. at 22.

158 Id. at 23.

159 See id. at 27.

160 The court acknowledged that at the age of 40, and without any fallopian tubes, B.Z.’s chances of undergoing further IVF procedures were slight, but nonetheless possible. See id. at 26.

161 See id. at 27.

162 See id. at 28.

163 See id. at 25.

164 Id.

165 See id.

166 See id.

167 The court admits as much in the opinion: “The parties having achieved their initial goal of becoming parents through IVF, [the] wife’s desire for more children conceived through IVF is significantly outweighed by [the] husband’s interest in avoiding procreation.” Id. at 28.

168 See id.

169 See id. at 20.

170 See, e.g., Fla. Stat. Ann. § 742.17 (1998) (mandating that couples must execute written agreement providing for disposition in the event of death, divorce or other unforeseen circumstances); S. 1120, 222d Leg., 1999-2000 Reg. Sess. (N.Y. 1999) (requiring advance directives as to disposition of cryopreserved eggs or embryos).

171 See Lori B. Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood, 81 Va. L. Rev. 2343, 2363 (1995).

172 See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 Wm. & Mary L. Rev. 145, 198 (1998) (explaining that devices such as living wills and premarital agreements can later help couples and families avoid legal entanglement and decrease psychological stress).

173 See A.Z. v. B.Z., No. 15-008-96, slip op. at 23-25 (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996) appeal docketed, SJC-08098 (Mass. argued Nov. 5, 1999).

174 See Farnsworth, supra note 148, §§ 4.6, 4.12, 4.19 (discussing contract defenses of mental incompetence, fraud and duress, respectively).

175 See Michelle Dorsey Deis, Gross v. Gross: Ohio's First Step Toward Allowing Private Ordering of the Marital Relationship, 47 Ohio ST. L.J. 235, 237 (stating that courts sometimes rely on family law and contract law principles selectively, to achieve the holding they wish).

176 See id.

177 See Helene M. Cole, Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663, 2664 (1990) (discussing courts’ reluctance to order individuals to offer medical intervention or treatment to pregnant women).

178 537 A.2d 1227 (N.J. 1988).

179 See id. at 1234 (describing the terms of the surrogacy contract).

180 See id. at 1240

181 See id. at 124-46

182 See id. at 1245-50. The court also found no “legal prohibition against surrogacy when the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights.” Id. at 12264. Presumably, such an uncompensated arrangement could be the subject of an enforceable contract.

183 See, e.g., Johnson v. Calvert, 5 Cal. 4th 84, 96 (1993) (upholding gestational surrogacy contract and declaring that it did not violate the public policies embodied in adoption statutes or statutes governing the termination of parental rights); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (invalidating genetic surrogacy contract as violating the policies underlying state adoption consent laws).

184 Surrogacy legislation has taken a variety of approaches. Some states deny enforcement of all surrogate parenting agreements. See Ariz. Rev. Stat. Ann. § 25-218(A) (West 1999); D.C. Code Ann. §§ 16-402(a) (1997); Ind. Code Ann. §§ 31-20-1-1, 31-20-1-2 (West 1999); Mich. Comp. Laws Ann. § 722.855 (West 1993); N.Y. Dom. Rel. Law § 122 (McKinney 1997); N.D. Cent. Code § 1418-05 (1998); Tenn. Code Ann. § 36-l-102(46)(C) (1998); Utah Code Ann. § 76-7-204 (1999). Other states expressly deny enforcement if the surrogate is to be compensated. See Ky. Rev. Stat. Ann. § 199.590(4) (Michie 1998); La. Rev. Stat. Ann. § 9:2713 (West 1999); Neb. Rev. Stat. § 2521.200 (1995); Wash. Rev. Code Ann. §§ 26.26.230, 26.26.240 (West 1997). Some states have exempted surrogacy agreements from provisions making it a crime to sell babies. See Ala Code. § 26- 10A-34 (1999); Iowa Code Ann. § 710.11 (West 1997); W. Va. Code § 48-4-16(e)(3) (1999). A few states have made unpaid surrogacy agreements lawful. See Fla. STat. Ann. § 742.15 (West 1998); Nev. Rev. Stat. § 126.045 (1995); N.H. Rev. Stat. Ann. § 168-B: 16 (1996); VA. Code Ann. §§ 20159, 20-160(B)(4) (Michie 1999). At least one state raises a presumption that a child born to a surrogate mother is the child of the intended parents and not the surrogate. See Ark. Code Ann. §§ 9- 10-201(b)-(c) (Michie 1998). For a discussion of the current status of surrogate parenting laws, see generally Lori B. Andrews, Reproductive Technology Comes of Age 5-8 (April 23, 1999) (unpublished manuscript, on file with author and the Whittier Law Review).

185 See Andrews, supra note 171, at 2346-50.

186 Mich. Comp. Laws Ann. § 722.855 (West 1993).

187 See id. § 722.859.

188 See id. § 722.861.

189 See id. § 722.23; see also Ostergren v. Ostergren, 118 N.W.2d 245, 246-47 (Mich. 1962) (holding that the primary concern for courts in child custody suits was the continued well being of the children involved).

190 See Mlch. Comp. Laws Ann. § 722.861 (West 1993).

191 See, e.g., Andrews, supra note 171, at 2366 (discussing the motivations of surrogate mothers); Radhika Rao, Assisted Reproductive Technology and the Threat to the Traditional Family, 47 Hastings L.J. 951, 955 (1996) (explaining how surrogate mothers can become disempowered through the denial of constitutional rights); Margery Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 Wls. L. Rev. 296, 335 (1990) (exploring the relationship between commodification of human life and surrogacy).

192 Preconception contracts do not necessarily exclude third parties. An embryo could conceivably be the product of donated sperm or egg. See, e.g., J.B., supra note 10, at 4 (noting that a male partner to an in vitro conception contemplated donating the embryo). In such a situation, a separate agreement between the couple (or individual) and the donor should precede any contract between the intended parents regarding disposition in the event of death or divorce. Thus, by the time an embryo would be formed, it would be treated under the contract as the embryo of the contracting couple, regardless of its genetic origin.

193 See Planned Parenthood v. Casey, 505 U.S. 833, 844-53 (1992).

194 See Planned Parenthood v. Danforth, 428 U.S. 52, 69-70 (1976); Davis v. Davis, 842 S.W.2d 588, 597 n.20 (Tenn. 1992).

195 See Casey, 505 U.S. at 852; Roe v. Wade, 410 U.S. 113, 153 (1973); see also Danforth, 428 U.S. at 69 (invalidating requirement that written consent of spouse be obtained as a prerequisite to abortion).

196 See supra notes 59-62 and accompanying text.

197 See k.7.. v. B.Z., No. 15-008-96, slip op. at 27 (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996) appeal docketed, SJC-08098 (Mass. argued Nov. 5, 1999).

198 See discussion supra Part III (proposing a gestational time-frame approach to resolving embryo implantation disputes).