In-Vitro Fertilization Frozen Embryos and The Right To Privacy

McGeorge Law Review
Volume 22 | Issue 1 Article 6
1-1-1991
In-Vitro Fertilization, Frozen Embryos, and the

Right to Privacy--Are Mandatory Donation Laws
Constitutional
Kim Schaefer
University of the Pacific; McGeorge School of Law
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Recommended Citation
Kim Schaefer, In-Vitro Fertilization, Frozen Embryos, and the Right to Privacy--Are Mandatory Donation Laws Constitutional, 22 Pac. L. J.
87 (1990).
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In-vitro Fertilization, Frozen Embryos,
and The Right to Privacy-Are
Mandatory Donation Laws
Constitutional?
Introduction
In-vitro fertilization (hereinafter IVF),1 combines modern technol-
ogy with the miracle of birth to give infertile couples the chance to
conceive their own biological offspring. 2 More recently, the advent
of cryopreservation3 has allowed IVF to become a more efficient tool
in enabling infertile couples to conceive. 4 These new technologies,
while lauded by some, also raise some troubling social, ethical, and
legal issues.'
1. In-vitro fertilization is a sophisticated infertility treatment that involves obtaining

mature eggs through surgical procedures, fertilizing them outside of the body, and then
reinserting the embryo into the woman's uterus. OFFICE OF TECH. AssEssfaNT, U.S. CONGRESS,
INFERTILITY: MEDICAL AND SOCIAL CHOICES 123 (1988) (hereinafter INFERTILITY).
2. See generally id. at 123. 14% of couples with wives between the ages of 30 and 34
are infertile; 25% with wives age 35 to 39 are infertile. Id. Overall, the infertility problem
appears to be becoming more serious, increasing from 3.5% in 1965 to 9.7% in 1982, an
increase of over 250% in seventeen years. D. Vetri, Reproductive Technologies and United
States Law, 37 INT. & Comp. L. Q. 505, 505 (1988). Female sterility is the cause of one-third
of the infertility problems. J. Saltarelli, Genesis Retold: Legal Issues Raised by the Cryopres-
ervation of Pre-ImplantationHuman Embryos, 36 SYRACUSE L. REv. 1021, 1026 (1985).
3. Cryopreservation is the freezing of eggs, sperm or embryos in order to preserve them.
INFERTILITY, supra note 1 at 384. See infra notes 24-33 and accompanying text (explaining the
in-vitro fertilization process).
4. Grobstein, Flower & Mendeloff, Special Report Frozen Embryos: Policy Issues 1985,
312 NEw ENG. J. OF MED. 1584, 1584-85 (1985). Because the embryos can be frozen, the
woman need not undergo repeated laparoscopy each time an embryo is to be implanted. Id.
Cryopreservation also provides for increased latitude in decisions of timing and family planning.
Id.
5. Annas, Redefining Parenthood and ProtectingEmbryos: Why We Need New Laws,
14 HAsTINGS CENTER. REP. 50, 50 (1984) (arguing that we should not remain silent about the
issues that require action to preserve important social interests just because we cannot answer
Pacific Law Journal / Vol. 22
Since the birth in 1978 of Louise Brown, the world's first IVF
baby, commentators have repeatedly called upon Congress and state
legislatures to address the complicated IVF issues. 6 To date, however,
only Louisiana has enacted legislation attempting to answer some of
these issues.7 Issues presented by IVF and cryopreservation are similar
to those relating to abortion, in that tough moral issues are presented,
and strong passions are aroused on both sides of the issue.' This
may explain the hesitancy of state legislatures to enact legislation
solving some of these difficult issues. 9 For a politician, a strong
stance on either side could be political suicide. ° Issues concerning
the use of cryopreservation and IVF, however, are beginning to be
litigated today." Thus, it appears that the first attempts to resolve
some of these important problems will be made in the judicial arena,
2
rather than by legislatures.
One of the most controversial issues relating to the extrauterine 3
embryos used in IVF is whether the embryos may be destroyed, and,
all the questions that these new techniques raise). See generally G. Smith II, Australia'sFrozen
"Orphan" Embryos: A Medical, Legal, and Ethical Dilemma, 24 J. FAM. L. 27 (1985-86)
(discussing some of the issues raised by IVF and cryopreservation).
6. See Grobstein, Flower & Mendeloff supra note 4, at 1588. Successful public policy
relating to issues as fundamental as human reproduction will require an underlying consensus
on the issue. Id. See also G. Smith II, supra note 5, at 36 (technological developments,
legislative design, and judicial precedent should be used to develop a strategy for dealing with
the new advances in reproductive technology). However, one commentator has suggested that
safeguards already in place, such as safety standards, self-regulating industrial guidelines, and
ethical codes can be used to develop a sound policy relating to reproductive biology, rather
than "cumbersome legislative restrictions." Id. at 39.
7. See LA. CrV. CODE ANN. §§ 9:121-9:133 (vest Supp. 1989). The Louisiana statute
states, in part, that an in-vitro fertilized human ovum is a legal person until implanted in the
uterus, or until rights attach to the unborn in accordance with the law. Id. § 123.
8. See Grobstein, Flower & Mendeloff, supra note 4, at 1587 (suggesting that the reason
there is little legislation on this subject is because lawmakers do not want to be involved in a
divisive issue similar to abortion).
9. Id. Perhaps the states have refused to pass legislation on this volatile issue until some
sort of input from the courts is heard. Id.
10. See id. After the United States Supreme Court gave more discretion to the states to
regulate abortion in Webster v. Reproductive Services, 109 S.Ct. 3040 (1989), the abortion
issue has been a decisive factor in many recent elections. See N.Y. Times, Oct. 29, 1989, § I,
at I (abortion was the central issue in the Virginia gubernatorial campaign); N.Y. Times, Oct.
27, 1989, § I at 35 (in the New Jersey and Virginia gubernatorial elections and the New York
mayoral race, a pro-abortion stance aided the candidates).
11. See, e.g., York v. Jones, 717 F. Supp. 421 (1989) (involving a dispute between a
couple and a reproductive institute over the ownership interest in a previously frozen embryo);
Davis v. Davis, Circuit Court for Blount County, Tenn., No. E-14496 (Sept. 21, 1989)
(involving a dispute between a divorced couple over use the of their frozen embryos). See
infra notes 232-240 and accompanying text (discussing the Davis case).
12. See Grobstein, Flower & Mendeloff, supra note 4, at 1587. The courts may not be
the ideal forum to resolve these difficult technical and moral issues. Id. A more deliberative
and less confrontational atmosphere may be desirable in order to better deal with the legal
and social conflicts that will arise. Id.
13. "Extrauterine" is defined as outside the uterus. DORL ND'S ILLUSTRATED MEDICAL
DICTIONARY 561 (25th ed. 1974).
1990 / In-vitro fertilization
if so, who has the authority to make this crucial decision. 14 Possible
decisionmakers include the parents, the health facility storing the
embryo, and the state.Y Currently, many American IVF clinics require
the parents to agree that all embryos created be implanted in either
the natural mother or in another woman willing to have the donated
embryo implanted. 16 This, in effect, is mandatory donation. By
making such a contract with the IVF clinic, the couple creating the
embryo gives away any right they may have to destroy that embryo,
as well as any right to decide not to have biological children. 17 While
this is the practice in many IVF clinics, only Louisiana has created
a mandatory donation law. 18
Part I of this Comment will give a brief overview of the IVF and
cryopreservation process. 1 9 Part II will discuss the medical and legal
status of the embryo. 20 Part III will discuss the reproductive and
privacy rights of the parents, and analyze whether the parents have
a fundamental right to decide the fate of an embryo that they have
created through IVF. 21 Part IV will discuss the state interest in the
14. See Robertson, DecisionalAuthority Over Embryos and Control over IVF Technology,
28 Juimmucs J. 285, 289-99 (No. 3, 1988) (discussing the scope of decisional authority over
extracorporeal emb'yos ) .
15. See J. Saltarelli, supra note 2, at 1031 (the Waller Committee, created by the Australian
government to examine the issues of IVF and pre-implantation embryos, recommended that
the couple involved should be required to make the decision as to the fate of the embryo);
Robertbon, supra note 14, at 287 (most IVF programs do not permit the couple involved to
discard any embryos that can be safely transferred to the uterus, essentially giving the health
facility some decisionmaking authority over the embryo); LA. Crv. CODE ANN. § 9:123 (West
Supp. 1989) (statute giving the state control over the pre-implantation embryo by stating that
before an embryo is implanted, it is considered a person under the law, and cannot be
destroyed); Annas, supra note 5, at 51 (when both of the parents die, the Warnock commission
has recommended that the embryos pass to the storage facility, which may decide the fate of
the embryos). But see G. Smith II, supra note 5, at 37. The Waller Report concluded that
the health facility storing the embryo should not be able to determine the fate of the embryo.
Id.
16. Robertson, supra note 14, at 287.
17. See generally id.
18. See LA. Crv. CODE ANN. § 9:126 (West Supp. 1989) (providing that a fertilized
embryo is a biological human and is the property of the gamete donors, and that if the donors
are not identified, the doctor is the custodian until adoptive implantation). Mandatory donation
laws would prevent the parents of a frozen embryo from destroying that embryo, and require
instead that it be implanted or donated to another couple. Robertson, supra note 14, at 296.
See Grobstein, Flower & Mendeloff, supra note 4, at 1585 (mandatory donation would be, in
effect, embryo adoption).
19. See infra notes 24-42 and accompanying text.
21. See infra notes 88-198 and accompanying text. See Roe v. Wade, 410 U.S. 113,. 153-
64 (1973). The Court in Roe analyzed the status of the embryo, and the privacy interests of
the woman. Id. After finding that the woman had a privacy right in abortion and that the
embryo was not a person from conception, the Court went on to conclude that the state's
interest in preserving potential life becomes compelling enough to interfere with the woman's
rights at the point of viability. Id.
embryo and whether the state can overcome any privacy rights that
the parents have in the embryo. 22 Finally, Part V will conclude that
2
mandatory donation laws are unconstitutional.
I. IVF AND CRYOPRESERVATION
A. IVF
IVF gives an infertile couple the opportunity to conceive their own

biological child. The first step in the IVF process involves the
introduction of hormones into a woman's body to stimulate the
ovaries to produce multiple eggs. 24 This process, called superovula-
tion, increases the number of eggs retrieved in one surgical proce-
dure.25 Superovulation enables several embryos to be implanted into
26
the uterus at once, greatly increasing the probability of pregnancy.
After superovulation, a surgical procedure called laparoscopy re-
trieves the eggs from the ovary. 27 The eggs are then transferred to
the lab and allowed to mature for approximately six hours. 28 Finally,
the eggs and sperm are combined and put into an incubator for
approximately twelve hours. 29 Meanwhile, the woman is given hor-

23. See infra notes 253-268 and accompanying text. This comment will use the word
"parents" and "embryo" as a convenient method of referring to the persons donating the
gametes, and the cryogenically preserved embryo. The term "embryo" refers to both the
preimplantation and postimplantation embryos. Most often, however, the term will be used in
discussing the preimplantation embryo. These words are not used to indicate that the embryo
is or is not a life, but are merely used as a reference.
24. Dickey, The Medical Status of the Embryo, 32 Loy. L. REv. 317, 324 (1986). See
also Robertson, supra note 14 at 287.
25. Dickey, supra note 24, at 324-25 n.53.
26. Id. See INsERTmrrY, supra note I, at 295 & n.53 (data indicating that the chances of
pregnancy increase when multiple embryos are implanted). See also Saltarelli, supra note 2, at
1027 n.32 (the success rate following implantation of a single embryo at the Norfolk General
Hospital Infertility Clinic was 13%, but with the implantation of two or more embryos, the
success rate increased to 31%). However, some studies have found that there are higher rates
of chromosomal abnormalities in the embryos resulting from superovulation. Id.; Robertson,
supra note 14, at 287 (superovulation involving the transfer of more than two embryos also
raises the risk of multiple pregnancy, presenting severe risks for the mother and the child).
27. Dickey, supra note 24, at 326. (laparoscopy involves inserting an instrument through
the navel to view the eggs, and then using another instrument to withdraw the fluid containing
the eggs from the ovary).
28. Id.
29. Id.
mones that prepare her uterus for the arrival of the embryo.30
31
After fertilization, the embryo may be introduced into the uterus.
The pregnancy then takes place in a normal manner. Embryo transfer
has led to clinical pregnancy about seventeen percent of the time,
32
and a live birth about eleven percent of the time.
B. Cryopreservation
Cryopreservation is the process of freezing and storing the embryo

in liquid nitrogen at approximately minus 196 degrees Celsius. 33 This
process preserves the embryo until implantation is desired. The
embryo is thawed when needed, and then implanted into the woman's
uterus in a manner similar to that used in IVF. 34 The embryo will
then develop as in a normal pregnancy. Approximately sixty children
have been born in Europe and Australia using IVF and cryopreser-
vation. 35 Although IVF through cryopreservation is still experimental,
the pregnancy rate in farm animals from frozen-thawed embryos
36
ranges from thirty-five to fifty-five percent.
Some commentators have suggested that freezing the eggs, instead
of the embryo, would alleviate many of the social and ethical issues
involved in IVF, since few commentators view the individual gametes
37
as human life and their destruction would not pose such a problem.
Freezing eggs, however, is much more difficult to accomplish with
any success because of the fragile nature of the egg and its chro-
30. Id. In order to successfully transfer an embryo to the uterus of a non-donor, the
menstrual cycles of the women must be matched to ensure the recipient is physiologically
receptive. See Grobstein, Flower & Mendeloff, supra note 4, at 1585.
31. Id. (the entire process usually takes about 50 to 78 hours, approximately the same
amount of time it takes for natural fertilization to occur).
32. INE-nrirry, supra note 1, at 295 & table 15.1.
33. Id. at 298. Most human embryos are frozen at one to eight cells. Id. at 299. See
generally Annas & Elias, In-Vitro Fertilization and Embryo Transfer: MedicolegalAspects of
a New Technique to Create a Family, 17 FAmI. L. Q. 199, (No. 2, 1983) (stating that
cryopreservation raises a constitutional issue in that the procedure currently results in a loss
of embryos; consequently the state may have an interest in limiting the use of the technique);
Saltarelli, supra note 2, at 1042 (stating that some persons view cryopreservation as experi-
mentation on an embryo, and feel that the procedure should be regulated as such).
34. Id. See generally G. Smith II, supra note 5, at 31 (Australia has developed guidelines
to deal with the ethical problems associated with IVF, and suggests that an upper time limit
be placed on the storage of embryos based upon "the need or competence of the female
donor").
35. INFERTriLrrY, supra note 1, at 298.
36. Id.
37. Dickman, Social Values in a Brave New World: Toward a Public Policy Regarding
Embryo Status and In-Vitro Fertilization, 29 ST. Louis U.L.J. 817, 834-35 (1985).
mosomes. 3s Also, eggs cannot be maintained outside of the body as

easily as embryos, therefore the eggs must be frozen very soon after
retrieval. 39 As a result, gathering a batch of eggs to freeze is not
possible since it is difficult to gather a large number of eggs in one
surgical procedure. 40 Because of the inconveniences and increased
cost, freezing eggs is unlikely to replace embryo freezing as the
41
predominant method in IVF.
IVF and cryopreservation have enabled infertility specialists to
preserve embryos outside of the womb, creating questions relating to
decisionmaking authority over these embryos. Before considering
whether parents have a right to destroy an embryo, it is essential to
first consider the status of the embryo.
II. STATUS OF THE EMBRYO
The question is, essentially, one pondered by scholars and philo-

sophers alike for ages: when does life begin? 42 With the development
of various technologies, most notably IVF, cryopreservation, and
abortion, this question has taken on greater significance. Many
individuals and couples are forced to decide when human life begins
in order to make an intelligent decision concerning whether to par-
ticipate in IVF, or whether to have an abortion. 43
The status of the embryo is essential in determining whether the
natural parents have protected constitutional interests in the embryo,
and whether the state can constitutionally impose a mandatory do-
nation law. If the embryo is viewed as life from the moment of
conception, then the parents may not be able to destroy the embryo
merely to prevent unwanted children. 44 If, however, the embryo is
38. See INFERTILITY, supra note 1, at 128, 299. Egg freezing is also more costly. Id. at
299.
39. Id.
40. This would, in effect, destroy one advantage which cryopreservation gives women:
reduction of need for repeated laparoscopy. INFERTImrrY, supra note 1, at 299.
41. See INFERTILITY, supra note 1, at 299.
42. See generallyWinkler, Concepts of Personhood:A PhilosophicalPerspective, DEaININo
HUMAN LnE MEDICAL, LEoAL, AND ETIcAL IMPLICATIONS 13-23 (1983) (philosophical perspec-
tive on the beginnings of life).
43. See generally Mace, ABORTION: THE AGONIZIG DECISION (1972) (portrayal of a
woman's crisis in making the decision whether or not to abort).
44. See Roe v. Wade, 410 U.S. 113, 138 (1973) (early American abortion statutes made
the act of abortion manslaughter, even when performed before quickening (the first recognizable
movement of the fetus in utero)). See generally Olsen, Unravelling Compromise, 103 HARV.
L. REv. 105, 111 n.26 (1989) (discussing the belief of some that abortion is murder).
not considered life from the moment of conception, one must first
determine when the embryo becomes life, and secondly, at what
point the state's interests become compelling enough to justify inter-
fering with the parents' rights. 45 This section will explore the medical
status of the embryo, and highlight three prominent theories on the
status of the embryo. 46
A. Medical Status of the Embryo
In IVF, the fertilized egg (zygote) is implanted in the uterus

approximately forty-eight to seventy-two hours after insemination. 47
During this period between insemination and implantation, the zygote
divides several times, and usually contains six to eight cells when
implanted. 48 Before implantation, the zygote is not yet individual-
ized, 49 has not developed a differentiated nervous system, and cannot
experience emotions or suffer pain. 50 Embryologists believe that an
embryo does not develop until about two weeks after fertilization,
when the rudiments of the whole embryo appear. 51 A fetus is not
formed until the major structures have been outlined, roughly seven
45. When orphan embryos were found in Australia, the Waller committee recommended
that they be destroyed. See Dickens, Artificial Reproduction and Child Custody, 66 CANADN
BAR REv. 49, 66 (1987). However, because of public outrage, the Australian legislature rejected
the idea, and required that the embryos be kept for later implantation. Id. See generally York
v. Jones, 717 F.Supp. 421, 425 (1989) (the health facility treated the embryo as the property
of the parents, and if the parents were to divorce, the ownership of the embryo would be
decided in a property settlement); Andrews, The Legal Status of the Embryo, 32 Loy. L. Rv.
357 (1986) (examining the legal status of the embryo); Annas, Impact of Medical Technology
on a Woman's Right to Privacy, 13 Am. J. oF LAW & MED. 213, 219 (1987) (quoting physician-
philosopher Leon Kass: "Man is defined partly by his origins and his lineage; to be bound
up with parents, siblings, ancestors, and descendants is part of what we mean by human. By
tampering with and confounding these origins and linkages, we are involved with nothing less
than creating a new conception of what it means to be human.").
47. Robertson, Embryos, Families, and ProcreativeLiberty: The Legal Structure of the
New Reproduction, 59 So. CAL. L. Rav. 942, 968 (1986) (insemination is the process by which
the egg is fertilized).
48. Id.
49. Id. at 970. Twinning could still occur at this stage. Id.
50. Id. Until the embryonic disc, axis, and primitive streak appear, the pre-embryo is not
able to experience pain, is not sentient, and has no brain activity. Id. The major developments
during this stage relate to the creation of a feeding layer rather than to the formation of the
embryo. Id. at 969.
51. Do AN.A's ILLUSTRATED MEDICAL DICTioNARY 507 (25th ed. 1974) (medical definition
of embryo); Kasimba, Regulating IVF Human Embryo Experimentation: The Search For a
Legal Basis, 62 AusTRmAuuA L. J. 128, 129 & n.5. (biologists, however, believe that an embryo
is not formed until about eight weeks after fertilization); Robertson, supra note 47, at 969,
973 n.113 (stating that, generally, the public does not confer independent moral status on a
mere collection of cells).
to eight weeks after fertilization. 52 Knowing the basic medical status

of the embryo, three prominent theories have arisen relating to the
legal status of the embryo.53
B. Three Theories on the Status of The Embryo
The first theory is that life begins at conception. This theory

postulates that from the time of fertilization the embryo is human
life, with all the inherent rights and privileges that accompany that
54
status .
Proponents of this theory believe that the embryo is biologically
alive in part because the embryo is made up of living cells, which
are recognized as one of the fundamental units of life.15 There is
scientific proof to support this theory. First, embryos contain all the
genetic ingredients to become complete human beings . 6 Second,
continuity of development exists, in that once the embryo is formed
it will continue to develop as human life. 57 Third, embryos can
metabolize, respond to changes in the environment, and respire. 8
Proponents of this view believe that in the case of IVF, the embryo
should be afforded the status of human life, since fertilization is
part of a deliberate effort to conceive, rather than a random repro-
ductive accident.5 9 This theory, however, has been criticized as being
too extreme, and not reflective of common experience.6 Everyday,
a significant number of embryos are lost naturally. 6' Saving every
embryo lost in the course of nature is impossible.6 2 If the embryo
52. DogRLAND's ILLUSTRATED MEDICAL DICTONARY 579 (25th ed. 1974) (medical definition
of fetus). See generally Blandau, The Complexity of Embryonic Development From Fertilization
to Implantation, DEFINING HUMAN Lnm MEDICAL, LEGAL, AND ETHICAL IMPLICATIONS 33-61
(1983) (outlining the stages of embryonic development).
54. Id. See Davis v. Davis, Circuit Court for Blount County, Tenn., No. E-14496, (Sept.
21, 1989) (the court found that the embryos were human life). See generally P. SMITH, THE
FETAL RIGHT TO LnE ARGUMENT (1977) (discussing whether a fetal right to life amendment to
the Constitution should be supported).
55. Dickman, supra note 37, at 830.
56. Annas, supra note 5, at 51. The human embryo is equal to more than the sum of its
constituent parts. Id. The embryo not only has the complete genetic complement of a human
being, but it also is a powerful symbol of human regeneration. Id.
57. Dickman, supra note 37, at 830.
58. Id.
59. Id.
60. Id. at 831.
61. INFERTLrrY, supra note 1, at 41.
62. See Dickman supra note 37, at 830.
were life, however, more of an effort would be made to save these

embryos lost naturally. Yet the loss of an embryo naturally is not
considered a tragic loss of "life," and this view should not change
merely because the loss occurs through the IVF process.6 3 In fact,
certain birth control methods, including the intrauterine device (IUD)
and "morning after" pill, work by actually destroying the embryo,
by preventing the embryo from implanting in the uterus. 64 Yet these
methods are not as frequently viewed as "murder" as they would if
more people considered embryos life.
The second theory is that the embryo is mere property, and should
not be treated any differently than other human organs or tissues.65
This theory postulates that the preimplantation embryo is merely a
collection of six to eight cells which have no substantive human
qualities.6 6 Even prior to Roe v. Wade, most states made abortion a
lesser crime than homicide, lending support to the belief that the
embryo is not human.67 Otherwise, there would have been no hesi-
63. INFERtriTY, supra note 1, at 41. Only about 50% of fertilized ova become implanted,
and only one quarter to one third of all embryos conceived become live born infants. Id. See
Dickman, supra note 37, at 828 n.83. (the loss of a fertilized embryo is an acceptable
phenomenon, and is not considered a tragedy, suggesting that these fertilized embryos are not
treated, or thought of, as humans); Annas, supra note 5, at 51 (before implantation, nearly
5006 of ova are lost, implying that they are not actual human beings, and, since they are not
human, that the death of an embryo is acceptable). See also INFERTIrI, supra note 1, at
253. Giving embryos the status of humans would probably be contrary to the decision in Roe
v. Wade, which stated that under the fourteenth amendment the word "person" does not
include the unborn. Id. However, there is arguably a difference between the embryos lost
through IVF and those lost naturally, in that human intervention causes the loss of the IVF
embryo, and thus the loss can be prevented by not using IVF.
64. See Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3081 & n.7 (1989)
(Stevens, J., concurring and dissenting) (giving brief reference to other forms of birth control
that destroy an embryo, including the "morning after" pill and the IUD. See generally
Comment, Criminal Law-Abortion-the "Morning-After Pill" and Other Pre-Implantation
Birth Control Methods and the Law, 46 OR. L. Rav. 211 (1967) (advocating that these methods
of birth control should not be made illegal).
65. See Robertson, supra note 47, at 972.
66. Id. at 970. See generally INFERnrtry, supra note 1, at 207 (the Waller committee in
Australia, the Warnock committee in Great Britain, and the 1979 Ethics Advisory Board all
suggested that research on embryos up to fourteen days after fertilization should be acceptable,
implying that embryos before that point are not yet human).
67. Flannery, Weisman, Lipsett & Braverman, Test Tube Babies: Legal Issues Raised by
In-Vitro Fertilization, 67 GEo. L.J. 1295, 1314 n.115 (1979) [hereinafter Test Tube]. See Roe
v. Wade, 410 U.S. 113, 138-41 (1973) (outlining the American law of abortion). The Court in
Roe found that until the late 19th Century, a woman had the right to make the choice to
have an abortion under American law. Id. at 140-41. By the 1950's, however, most states
made all abortions criminal, and the penalties were increased. Id. at 139. By the late 1960's,
there was a trend toward liberalization, and about one-third of the states adopted less stringent
laws. Id. at 140; Robertson supra note 47, at 973 (even philosophers who believe that abortion
is wrong usually do not grant an embryo a right to life unless there is some sort of nervous
system developed, and implantation has occurred).
tation to charge a woman for murder after having an abortion. This

theory, however, has been subject to criticism.63 Although the notion
of treating the embryo as property may have a basis in scientific
fact, the theory ignores the tremendous importance society places on
life, and more specifically on embryos as the symbol of life. 69
The third theory does not accord the embryo the full status given
to persons, but does not treat the embryo as mere property. 70 This
position recognizes that the embryo has great symbolic value because
of its potential to become a person, and realizes that the embryo
cannot be considered mere property, as are other human tissue and
organs. 71 This symbolic value, however, is weighed against the medical
evidence that preimplantation embryos are only six to eight cells,
and are neither sentient nor developmentally individual. 72 Thus, the
third theory confers upon the embryo symbolic importance, yet does
not treat the embryo as human. 73 This view is the one endorsed by
most commentators, including the Ethics Advisory Board, commis-
sioned by Congress to study IVF. 74
68. See, e.g., Robertson, supra note 14, at 295.

69. The preimplantation embryo is only six to eight cells, and is not yet individualized
since the embryos could still divide and become twins. Robertson, supra note 47, at 970. See
Dickman, supra note 37, at 835; Robertson, supra note 47, at 974 & n.l 17
At a time of growing willingness to terminate treatment for comatose, terminally ill,
and severely handicapped persons and to abort fetuses, many may find it useful or
reassuring to take a firm stance on such potent symbols of human life as embryos,
in order to demonstrate that society still values human life highly. Id.
See also id. at 974 (donor organs are considered valuable only because of the life they can
give, not because they have value in themselves. G. Smith II, supra note 5, at 31 (if embryos
were considered property, they would also have to have an economic value, a valuation that
would be impossible to make). See generally Annas, supra note 5, at 51 (arguing that we
know intuitively that a human embryo is more valuable than a hamster or other experimental
animal, and that is why we have trouble permitting experiments on human embryos).
71. Id. See id. 974 n.114 (comparing the embryo to human organs and tissues removed
during surgery or from cadavers). These limits are more like guidelines that should be followed
than rights. Id. The pre-implantation embryo may not be afforded the full rights given to
humans, but one can recognize the fact that the embryo is a potential human, and confer
upon the embryo certain limited rights. G. Smith II, supra note 5, at 32. See also INFERTILITY,
supra note 1, at 208. The embryo in this plan is a "transient identity" and should be given
"transient rights." Id. These rights are not found in the nature of the embryo's potential
existence, but from the values others place on its existence. Id.; Annas, supra note 5, at 51.
Just as we do not consider animals "human" in order to afford them protection, neither do
we need to consider an embryo a human in order to confer upon it basic rights. Id.; Grobstein,
Flower & Mendeloff, supra note 4, at 1586 (while commentators may agree that the embryo
deserves respect, they cannot agree on what "respect" means as a limit on use or treatment
of the embryos).
72. See generally id. at 972-73.
73. Id. at 972.
74. Annas & Elias, supra note 33, at 210. See also Robertson, supra note 47, at 972. See
generally Robertson, supra note 14, at 294-95. The view of the majority of official bodies in
The third theory has been criticized as well. Critics claim that the
idea that the embryo is a human life having only limited value is a
"conceptual mystification," contending that the embryo must either
have rights or not have rights. 75 Another criticism has been that any
attempt to determine when the embryo should be considered "truly
76
human life" is necessarily arbitrary.
While a consensus on the status of the embryo may never be
reached, the courts or the legislatures must reach a conclusion to be
able to assess the various rights of the interested parties. 77 Many
courts will likely adopt the view that the embryo is not human, yet
still has some protected interests. 78 This view appeals to most com-
mentators because it takes the interests of both the state and the
parents into account. 79 This also seems to be the theory that the
United States Supreme Court has adopted in its abortion decisions.A0
Although the Court in Roe v. Wade stated that it was not deciding
when life begins, the Court did state that a woman's right to an
abortion remained essentially unchecked up until the point of viabil-
ity, when the state's interests in the potential life of the fetus becomes
compelling. 8' Had the Court treated the embryo as life from the
moment of conception, the state's interest would be compelling
throughout the pregnancy, and abortions would be greatly restricted.82
many jurisdictions is that while embryos are not persons, they nonetheless deserve more respect
than that accorded other human tissue. Id.
75. See Dickman, supra note 37, at 836.
76. Id. at 836.
77. See infra notes 6-12 (discussing the view that these decisions should be made in the
legislature). See generally Jonsen, Transition from Fetus to Infant: A Problem for Law and
Ethics, 37 HAsrn s L.J. 697, 700 (1986) (fetuses are unique entities, and this may be what
makes it so difficult to decide what their legal and moral status is or should be).
78. The United States Supreme Court in Roe v. Wade adopted the view that the word
"person," in the context of the fourteenth amendment, does not include those that are not
born. Roe v. Wade, 410 U.S. 113, 157 (1973). However, the court did find that the state has
an interest in potential life. Id. at 159. See generally id. at 160-61 (illustration of the historical
background on when life begins, including how the question has been dealt with in other areas
of the law, such as tort law).
79. See generally Robertson, supra note 47, at 973-76 (discussing the pros and cons of
the three views); Annas & Elias, supra note 33, at 210 (most commentators believe the embryo
is worthy of respect, even if human status is not conferred).
80. See Roe, 410 U.S. at 163; Webster v. Reproductive Health Services, 109 S.Ct. 3040,
3075 (1989) (Blackmun, J., dissenting) (stating that there is a "fundamental and well recognized
difference between a fetus and a human being," and that if there were not, the states would
not be able to allow abortions at all).
81. Roe, 410 U.S. at 163.
82. See id. at 157. But see Davis v. Davis, Circ. Court for Blount County, Tenn., No.
E-14496 (Sept. 21, 1989). The Davis court found that the pre-implantation embryo is life from
the time of conception, and cannot be destroyed. Id. at 16. The court also rejected the
argument that an embryo begins at conception as property, and develops into a human being.
Id.
Furthermore, this theory balances scientific technology with the need

for social recognition of the value of life. 83 While many may consider
any line arbitrary, 84 "many branches in the law abound in nice
distinctions that may be troublesome but have been thought none-
theless necessary. '"85
Assuming the courts decide that the embryo, while not human,
should be considered more than mere property, the decision must be
made concerning the scope of any rights the 86parents may have
regarding the disposition and use of the embryo.
III. RIGHT TO PRIVACY
The question of whether parents have a fundamental right to

decide the fate of the embryo, including the right to destroy the
embryo if the parents choose not to have offspring, should be
examined in light of Supreme Court decisions involving the right to
privacy.87 The Court has already found that the right to privacy
includes the right to procreate, the right to abort a fetus, the right
to use contraceptives, and the privacy interests inherent in the marital
relationship. 88 The issue is whether the right to privacy encompasses
the parents' right to destroy the embryo. 89 Most would agree that
the parents, as creators of the embryo, have some degree of decisional
authority over the embryo. 90 However, the scope of the parents'
rights over the embryo is unclear. 91 In several cases, the Supreme
Court has dealt with the right to privacy in the area of reproduction
92
and abortion.
83. See generally Robertson, supra note 47, at 973-76 (discussing the three theories relating
to the status of the embryo).
84. See Dickman, supra note 37 at 836.
85. Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3074 (1989) (Blackmun, J.,
dissenting) (quoting Chief Justice Rehnquist in Daniels v. Williams, 474 U.S. 327, 334 (1986)).
86. See infra notes 151-98 and accompanying text (discussing the parent's rights concerning
the frozen embryo).
87. Annas, supra note 45 at 214. See Robertson, supra note 14, at 289. ("the scope of
decisional authority over extracorporeal embryos turns on the allocation of procreative choice
between the individual and the state, and the extent to which decisions about IVF and embryos
involve procreative choice").
88. See infra notes 94-158 and accompanying text (discussing the Supreme Court's right
to privacy decisions).
89. See Annas & Elias, supra note 33, at 209.
90. See Robertson, supra note 14, at 289. Few would contest that the parents are the
primary decisionmakers; the question is the scope of their authority over the embryo. Id.
91. Id. See generally id. at 292 (wide degree of latitude would probably be given to
parents over embryos created from their gametes).
92. See infra notes 94-150. See generally Test Tube, supra note 67, at 1301 (one would
A. Marriage and Reproductive Privacy
Under the penumbra of the fourteenth amendment, 93 the Court

has developed a right to privacy encompassing certain reproductive
rights. 94 In 1942, the Court in Skinner v. Oklahoma95 invoked the
equal protection clause to invalidate an Oklahoma statute requiring
involuntary sterilization for certain "multiple felons," stating that
the right to procreate is a basic liberty interest which cannot be
infringed upon without a compelling state interest. 96
The Court expanded the Skinner liberty interest in Griswold v.
Connecticut.97 In Griswold, the Court invalidated two Connecticut
statutes that prohibited married couples from using contraceptives.9 8
The Court found that a married couple's relationship was within the
zone of privacy protected by the Constitution, and that the Connec-
ticut statutes impermissibly interfered with the right to privacy in-
herent in the marital relationship by having a "maximum destructive
impact upon that relationship." 99
likely find a fundamental right to use IVF in the Supreme Court decisions pertaining to the
right to privacy).
93. See generally TRIBE, ANimiticA CoNTSrrtONAL LAw, § 15-3 at 1308-12 (1988) (sources
of the right to privacy include not only the fourteenth amendment, but the due process clause
of the fifth amendment, the privileges and immunities clause, and the penumbras of the first,
third, fourth, and fifth amendments, as well as others).
94. Carey v. Population Services Int'l, 431 U.S. 678, 685 (1977) (discussing the various
rights protected by the right to privacy). While no explicit right to privacy is mentioned in the
Constitution, courts have found that there is a right of privacy, or a guarantee of certain
zones of privacy, implicit within the aspects of liberty found in the fourteenth amendment
due process clause. Id. See generally Webster v. Reproductive Health Services, 109 S. Ct.
3040, 3058 (1989). The Webster plurality found it unwise not to elaborate on the "abstract
differences" between a "fundamental right to abortion," a "limited fundamental constitutional
right," and the plurality's characterization of the source of abortion protection, a "liberty
interest protected by the due process clause." Id.
95. 316 U.S. 535 (1942).
96. Id. at 536, 541-43.
97. 381 U.S. 479 (1965).
98. Id. at 485. The statutes provided:
Any person who uses any drug, medicinal article or instrument for the purposes of
preventing conception shall be fined not less than fifty dollars or imprisoned not
less than sixty days nor more than one year or be both fined and imprisoned.
and
Any person who assists, abets, counsels, causes, hires or commands another to
commit any offense may be prosecuted and punished as if he were the principal
offender.
Id. at 480.
99. Id. at 485. The Court found that the marital relationship affected by the statutes was
an intimate relationship between the husband, the wife, and, to a limited extent, the physician.
Id. at 482.
In Eisenstadt v. Baird,1'0 the Court invalidated another contracep-

tion law that made distribution of contraceptives to unmarried cou-
ples illegal. 10 The Court held that the state may not interfere with
a couple's right to decide whether to have children, regardless of
their marital status.'0 2 The Court stated that "if the right to privacy
means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion as to matters
so fundamentally affecting a person as the decision whether to bear
or beget a child.' 0 °3 The interests implicit in both Eisenstadt and
Griswold involve a couple's privacy right to decide whether to bear
children. 10The Court in Griswold found that this interest was implicit
in the marital relationship, and in Eisenstadt the Court extended
05
protection of this interest to unmarried couples. Thus, the Court
established that the decision whether to bear children is a fundamental
privacy interest protected by the Constitution.
'6
07
In 1977, in Carey v. Population Services International, the Court
19
stated that decisions relating to marriage, 1s procreation, contracep-
2
tion,110 family relationships,"' and child rearing" are personal ones,
3
and may be made without unjustified government interference." The
Court stated that the government must prove the existence of a
compelling state interest to justify interfering with any of these
114
fundamental rights.
100. 405 U.S. 438 (1972).

101. Id. at 443.
102. Id. at 453.
103. Id.
104. See TamE, supra note 93, §15-10 at 1339 (the effect of Eisenstadt was to interpret
Griswold, as standing for the idea that reproductive autonomy is a protected right).
105. Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Eisenstadt v. Baird, 405 U.S. 438,
443 (1972).
106. See Note, The Evolution of the Right to Privacy After Roe v. Wade, 13 Ams. J. oF
LAw & MED. 368, 386-87 (1987).
107. 431 U.S. 678 (1977).
108. See Griswold v. Connecticut, 381 U.S. 479 (1965).
109. See Skinner v. Oklahoma, 316 U.S. 535 (1942).
110. See Eisenstadt v. Baird, 405 U.S. 438 (1972).
111. See Moore v. City of East Cleveland Ohio, 431 U.S. 494, 499 (1977) (many cases
have recognized a private area of family life which the state cannot enter without a compelling
justification); Roberts v. U.S. Jaycees, 468 U.S. 609, 619-620 (1984) (family relationships
involve strong attachments and commitments between a few individuals, where one shares the
distinctively personal aspects of one's life).
112. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The parents are the primary
caretakers, whose duties include the custody, care, and nurture of the child, and the state
cannot hinder these efforts nor supply these needs. Id.
113. Carey v. Population Services, 431 U.S. 678, 685 (1977).
114. Id. at 686.
The right to privacy, however, does not extend to all aspects

relating to sexual practices.11 In Bowers v. Hardwick,' 6 the Court
declared that a statute prohibiting sodomy between consenting adults
was constitutional and that no constitutional right exists for homo-
sexuals to engage in sodomy.1 7 The Court stated that cases such as
Griswold, Eisenstadt, and Carey established a limited right to privacy
when there is a connection between family, marriage, or procrea-
tion." 8 Because homosexual acts of sodomy do not embody these
interests, the Court found that the right to privacy does not extend
to such acts." 9
Recently, in Michael H. v. Gerald D. '120 the Court attempted to
define what considerations make a right "fundamental.' 2' The plu-
rality upheld a law that presumed that a child born to a married
woman living with her husband is the child of the marriage. 122 The
alleged natural father, who was not the woman's husband, claimed
23
that he had a right to maintain a relationship with his natural child.
The plurality found that, to be fundamental, an interest must not
only be a liberty interest, but it must also be an interest that society
has traditionally protected. 24 Since the plurality found that an adul-
terous natural father was not traditionally able to claim paternity,
he did not have a protected fundamental right. 25 The dissent, how-
ever, disagreed with the plurality's emphasis on traditionally protected
115. See Robertson, Justifying Roe v. Wade, 13 AM. J. oF LAW & MED. 189, 191 n. 17
(1987) (Roe v. Wade does not expand nonprocreative rights, such as the right to express
sexuality or control one's own body).
116. 478 U.S. 185 (1986).
117. Id. at 192. See generally, Sheppard, Private Passion, Public Outrage: Thoughts on
Bowers v. Hardwick, 40 RUTOERs L. REv. 521 (1987) (criticizing the Bowers decision). Bowers
did not address the issue as it relates to heterosexual couples. Bowers, 478 U.S. at 190.
118. Bowers, 478 U.S. at 191.
119. Id. 478 U.S. at 192.
120. 109 S.Ct. 2333 (1989).
121. Id. at 2341-42. The Court analyzed the issue of whether a biological father has a
protected liberty interest in his relationship with his child, when the mother was married to
another man at the time of both the conception and birth of the child. Id. at 2341. The state
asserted that the man to whom the woman was married and living with at the time the child
was born is presumed to be the father of the child, and that the alleged biological father may
not contest this presumption. Id. at 2340.
122. Id. at 2336.
123. Id. at 2337.
124. Id. at 2341. The interest must be "rooted in the traditions and conscience of our
people." Id.
125. Id. at 2343. In footnote 6, Justice Scalia and Chief Justice Rehnquist said that the
focus should be at the "most specific level at which a relevant tradition protecting, or denying
protection to, the asserted right can be identified." Id. at 2344 n.6. The tradition on which
the plurality focused was one regarding the natural father's rights to "a child whose mother
is married to another man." Id.
interests, believing instead that the focus should be on interests that

society traditionally has thought important, regardless of whether the
interest has always been protected.' 26 The dissent felt that the interest
the natural father claimed was an interest in parenthood. 27
Using the reasoning of Michael H. to analyze the decision not to
implant an embryo, a court could find that no fundamental right to
destroy a frozen embryo exists. Viewed most narrowly, the interest
in destroying preimplantation embryos is not an interest that has
been "traditionally protected by society.' 28 Taking a somewhat
broader view, however, one can argue that, although this particular
method of destroying embryos is new, the concept of embryo de-
struction has been protected by society since the Supreme Court
decision protecting abortion in Roe v. Wade. 129 Further, birth control
methods such as the IUD involve the destruction of embryos, and
these have been consistently protected by the court as falling within
30
the right to privacy. Contraception, abortion, and embryo destruc-
tion share the same privacy interest: the right to decide whether or
3
not to have children, without state interference.1 1
The Court has consistently found that decisions by married couples
concerning reproduction and family are inherently private, and there-
126. Id. at 2350-51 (Brennan, J., dissenting) (asserting that the plurality approach would
only allow the due process clause to support those interests already protected by the majority
of the public).
127. Id. at 2350 (Brennan, J., dissenting).
128. In Michael H. the plurality did not consider the relationship between a biological
father and his child to be a right traditionally protected by society. Id. at 2341. Thus, it would
seem unlikely that the relationship between a couple and their frozen embryo would be one
that is "traditionally protected."
129. See LUKER, ABORTION & THE PoLrrcs OF MOTmROOD 11-34 (1984) (giving a brief
historical review of abortion prior to and during the nineteenth century, and examining the
first anti-abortion movement). Abortion in the nineteenth century, especially in the early stages
of pregnancy, was widespread. Id. at 18. At the beginning of the nineteenth century, no
statutes governed abortion. Id. at 14. Luker states that the right to life movement has been
successful in causing Americans to misapprehend the historical status of abortion, making
them believe that, historically, abortion had been considered murder, when in fact this view
is relatively recent. Id. at 14. "Ironically, then, the much maligned 1973 Supreme Court
decision on abortion, Roe v. Wade ... was much more in line with the traditional treatment
of abortion than most Americans appreciate." Id. at 14. See generally Roe v. Wade, 410 U.S.
113 (1973) (upholding a woman's right to abortion). Although the Court did say it was not
deciding the issue of when life begins, it did allow the destruction of embryos by holding that
abortion is constitutionally protected. Id. at 163-64.
130. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). See generally Webster v.
Reproductive Services, 109 S.Ct. 3040, 3059 (1989) (O'Connor, J., concurring) (stating that
Griswold may protect contraceptive devices that work post-fertilization).
131. See supra notes 94-150 and accompanying text (discussing the abortion cases and the
privacy interests that the Court has protected in those cases, including the privacy interest that
the woman has in her own body).
fore are protected from unjustified governmental intrusion. 13 2 Because

of the fundamental nature of this right, regulations imposing burdens 133
on these decisions must be justified by a compelling state interest.
In the abortion context, however, the fundamental right to privacy
is pitted against an equally important command: One cannot take
the life of another except to save a life.1 34 The abortion cases weigh
the right to privacy against a competing state interest in preserving
potential life.1 35 The state interest in protecting potential life is the
same interest involved when the state seeks to impose a mandatory
embryo donation law, and the right to privacy involved in abortion
is essentially the same privacy right involved when a couple decides
to destroy a preimplantation embryo .136 Because of these similarities
between IVF, cryopreservation, and abortion, an analysis of the
Court's decisions relating to abortion may give some insight into the
question of whether a couple has a privacy right to decide not 37 to
have biological children by destroying a preimplantation embryo.
B. Abortion Protections
In Roe v. Wade, 138 the Court held that a woman has a fundamental
right to decide whether to terminate her pregnancy.' 3 9 The Court,
relying on Eisenstadt, Griswold, and Skinner, stated that the right
to privacy extqnds to activities relating to contraception, procreation,
and marriage.' 40 The Court then considered the harm that would
132. See generally Carey v. Population Serv. Int'l, 431 U.S. 678, 685 (1977). "This is
understandable, for in a field that by definition concerns the most intimate of human activities
and relationships, decisions whether to accomplish or prevent conception are among the most
private and sensitive." Id.
133. See TRIE, supra note 93, at 1339; INFERTILrrY, supra note 1, at 219 (the right to
procreate is viewed as a fundamental right, a right that is essential to the notion of liberty
and justice); Robertson, supra note 115, at 192 (stating that when a fundamental right exists,
governmental intrusion must be justified by a compelling state interest).
134. See TiuME, supra note 93, at 1340.
135. See generally Roe v. Wade, 410 U.S. 113, 152 (1973) (establishing a limited right to
abortion by balancing the woman's rights with the state's interest in protecting the health of
the mother and the potential life).
136. See generally supra notes 43-87 (discussing the status of the embryo); Annas, supra
note 45, at 219-20 (the state's claim is that the embryo's "right to life" must be protected,
while the counter-claim would be that the embryo has no "right to life").
137. See infra notes 199-231 (describing the state interests found in the abortion cases).
138. 410 U.S. 113 (1973).
139. Id. at 153. See generally P. SmITH, THE FETAL RIGHT TO LIFE ARGUMENT (1977)
(stating the argument that abortion promotes extramarital affairs, immorality in society,
selfishness, and a disregard for human life).
140. Roe, 410 U.S. at 152. Contra Doe v. Bolton, 410 U.S. 179, 221 (White, J., dissenting)
ensue if the state did not allow a woman the right to terminate her
pregnancy, including the stigma of unwed motherhood, psychological
harm, the distress inherent in having an unwanted child, the physical
harm that could ensue with pregnancy, and the deprivation of the
woman's right to control her body. 14 1 After examining the psycho-
logical impact and the physical burdens of pregnancy, the Court
decided that a woman has a fundamental privacy right to terminate
her pregnancy until the point of viability, when the state's interest
in the fetus' life becomes compelling. 142
Recently, in Webster v. Reproductive Health Services, 143 a plurality
of the Court opened the door for states to regulate abortion prior
to viability. 144 While the state interest may become compelling before
viability, the plurality did not expressly state that it was altering the
substance of a woman's constitutionally protected privacy right to
have an abortion.1 4
The plurality stated that it would not "elaborate
the abstract differences between a 'fundamental right' to abortion,
as the Court described it in Akron ... a 'limited fundamental
constitutional right,' which Justice Blackmun's dissent today treats
Roe as having established ... or a liberty interest protected by the
Due Process Clause, which we believe it to be.' ' 46
Justice Blackmun, in dissent, characterized the Court's past deci-
sions as protecting a woman's fundamental right to have "some
control over [her] own role in procreation."'' 47 Justice Blackmun
declared that the viability standard is an effective compromise be-
(stating that there is nothing in the Constitution to support the idea that a woman has a right
to abortion). See generally Robertson, supra note 115, at 189-90 (it is not a great step to go
from the decisions protected in Griswold and Eisenstadt to the abortion protection in Roe).
141. Roe, 410 U.S. at 153. See supra notes 203-209 (analysis of the state interests the
Court found in Roe v Wade).
142. Roe, 410 U.S. at 163. The Court stated that viability is the point at which the fetus
could live outside of the womb. Id. at 160. See generally Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 70-71 (1976) (spousal consent requirement deemed uncon-
stitutional); Maher v. Roe, 432 U.S. 464, 474 (1977) (the state does not have to pay for
nontheraputic abortions even though it may pay for childbirth); Akron v. Akron Center For
Reproductive Health, 462 U.S. 416, 438-39 (1983) (striking down an Ohio statute requiring
that all abortions performed after the second trimester to be performed in a hospital).
143. 109 S.Ct. 3040 (1989).
144. See infra notes 218-230 and accompanying text (describing the Webster decision relating
to the State interest in potential life).
145. But see Webster, 109 S.Ct. at 3058 (plpirality indicating that it did not believe that a
fundamental right to abortion exists, by stating its belief that the right to abortion is merely
a liberty interest protected by the due process clause). Justice Scalia, in concurrence, stated
that he believes Roe was wrongly decided and should be overturned. Id. at 3064 (Scalia, J.,
concurring).
146. Id. at 3058.
147. Id. at 3073 (Blackmun, J., dissenting).
tween the interest of women and the interest of the state.1 48 The
dissent further criticized the plurality for refusing to address the issue
of whether there is an 'enumerated' general right to privacy,"
49
extending to abortion.1
C. Privacy Rights Involving the Destruction of an IVF Embryo
For a court to protect as a fundamental right a couple's decision

to destroy a preimplantation embryo, that court will have to find
that the decision to destroy the embryo is similar to 50the privacy
interests that the Supreme Court has already protected.
1. Abortion Comparisons
In comparing the decision to destroy the embryo in the context of

IVF with the right to seek an abortion, many similarities exist. In
determining that a fundamental right to terminate a pregnancy exists,
the Court in Roe considered the psychological impact an unwanted
child could have upon the mother, as well as the distress that is
attributable to the stigma of being an unwed mother.' As in
abortion, there are psychological interests that the IVF parents may
want to avoid by destroying the embryo.
Even though a woman in the context of IVF does not physically
bear or raise the child, there is an emotional attachment between the
148. Id. at 3075.

149. Id. at 3072.
150. See generally Michael H. v. Gerald D., 109 S.Ct. 2333, 2341 (1989) (the plurality
found that in order for a liberty interest to be protected, it must be one traditionally protected
by society); J. Saltarelli, supra note 2, at 1034-35 (a court would probably uphold the right
to engage in IVF given the Supreme Court's recognition of privacy rights relating to the
decision to bear or beget children).
151. Roe at 153. See id. Some of the interests that the Court outlined include the idea
that additional offspring may produce a distressful life, the social stigma of being an unwed
mother, the psychological difficulties involved in caring for a child, and the mental distress
that comes with having an unwanted child. Id. See also Doe v. Bolton, 410 U.S. 179, 214-15
(1972):
Elaborate argument is hardly necessary to demonstrate that childbirth may deprive
a woman of her preferred lifestyle and force upon her a radically different and
undesired future. For example, rejected applicants under the Georgia statute are
required to ... abandon education plans, to sustain loss of income, to forgo the
satisfaction of careers, to tax further mental and physical health in providing child
care . ..
Id.
biological parents and the child.15 2 One would not argue that a man
has no emotional attachment to his biological children just because
he did not physically bear those children.'53 Similarly, it would be
unrealistic to argue that, because the woman did not physically bear
the child, and the couple did not experience the pregnancy, no
emotional attachment to that child could exist. 5 4 A couple may not
want to have their embryos donated to another couple, because they
may want to avoid the psychological distress that could occur from
knowing that their biological children were being raised by another
family.5 5 A couple, unable to bear children even through IVF, may
be devastated to know another couple will produce and raise their
biological children with the embryos they were forced to give away. 56
Further, many children born of donor embryos may want to find
their biological parents, which the biological parents may want to
avoid. 157 Thus, the destruction of the IVF embryo is similar to the
abortion cases in that there are psychological interests that the parents
may want to avoid by destroying the embryo.
Some may argue, however, that there are differences between the
right found in the abortion cases and the interests involved in the
152. See Robertson, supra note 47, at 979 & n.136 ("some persons may be exceedingly
troubled by the knowledge that a person of their blood is 'out there' raised by another and
might experience guilt or an intense desire for contact that leaves them frustrated and angry"),
153. Cf. Michael H. v. Gerald D., 109 S.Ct. 2333, 2343, 2345 (1989) (stating that an
adulterous father does not have a protected right to obtain parental perogatives and to have
himself declared the natural father). The Court emphasized the fact that if the natural father
were allowed to assert parental rights over his biological child, this would deny protection to
a marital father. Id. at 2345. For this reason Michael H. may be distinguishable because, in
the case of IVF, giving the couple a right over the embryo would not deny protection to
anyone else.
155. Id. The experiences of the biological parents who give their child up for adoption
would be similar to an IVF couple giving up their embryo to another woman. See generally
A. SoRosicY, A. BARAN & R. PANNOR, THE ADoPniol T _ANGLa 52 (1978) (50% of all birth
parents said that they continued to have feelings of loss and mourning over the child they
relinquished, and 82% would be interested in a reunion and wondered about their child's well-
being). See also Dickman, supra note 37, at 846 (discussing the reach of claims of procreative
freedom).
156. See Boskey, Adoption, The Termination of ParentalRights and Baby M., 18 SETON
HALL L. RE. 866, 873-74 (1989) (stating that in In re Baby M., 109 N.J. 396, 537 A.2d 1227
(1986) the court found that adoption cannot be granted prior to birth, since prior to that
time, the surrogate mother does not fully comprehend what she is giving up, therefore, any
prior decision is necessarily uninformed). See generally In re Baby M., 109 N.J. 396, 537 A.2d
1227 (1988).
157. See Robertson, supra note 47, at 979. See also Robertson, supra note 115, at 211
n.80 (courts usually do not like to confer fundamental right status based on psychosocial
burdens alone). See generally A. SOROSKY, A. BANRAN & R. PANNOR, THE ADOPTION TRANOLE
(1978) (describing the emotional ties between the adoptive parents, the adopted child, and the
natural mother). See supra notes 252-253 and accompanying text (examining the state interests
in potential life in the case of abortion as compared to IVF).
IVF context. In IVF, as opposed to abortion, the woman's body is

not involved until the embryo is implanted.158 Therefore, a major
consideration of the Court in deciding the abortion cases is inappli-
cable to the IVF controversy.159 Further, in the context of abortion,
the Court has arguably implied that the right not to bear children
does not necessarily include the right to destroy the fetus, since the
Court has upheld statutes requiring the physician performing the
abortion to strive to save the aborted fetus. 6° The Court has also
stated that after viability, states may absolutely prohibit abortions in
order to promote the state's interest in potential life, unless the health
or life of the mother is at stake. This allows states to force a woman
to give birth to her biological child, perhaps against her will.' 6' In
the abortion context, therefore, it can be argued that the Court has
never allowed a woman to destroy the fetus whenever she decided
she did not want to have children. The Court has simply protected
the woman's privacy interests in her body, and in doing so, has
found it necessary to allow the fetus to be destroyed in certain
cases. 162 Since the woman's body is not involved in IVF, it can be
argued that there is no right to destroy the embryo. Assuming
arguendo that this is true, IVF parents may still have a right to
avoid having biological children if the parents act before the embryo
becomes viable, since, by definition, before viability the fetus could
not live outside of a woman's body. Under Roe, arguably, the
woman's rights are paramount to the state's interest in potential life,
until the point of viability. 163 A preimplantation embryo is not viable,
and it would not be possible to save the embryo if the couple decided
not to have the embryo implanted in the woman. 64 Although a state
could argue that the preimplantation embryo could be saved by
donating the embryo to another couple, this would treat infertile and
158. See supra notes 24-33 (describing the IVF procedure). Except for the retrieval of the
egg, the woman's body does not become involved until the embryo is implanted. J. Saltarelli,
supra note 2, at 1037.
159. See Roe v. Wade, 410 U.S. 113, 153 (1973).
160. See INFERTMITY, supra note 1, at 224. See also Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. at 65 (1976).
161. See Roe, 410 U.S. at 163-64.
162. See generally, INFERTiLnTY, supra note 1, at 224.
163. See Roe 410 U.S. at 160 (viability is the point at which the fetus can live outside the
womb).
164. See Robertson, supra note 47, at 979 & n.133 ("the situation [of abortion] is different
[from mandatory donation] because the live-born [aborted fetus] may independently have
rights that arise from its more advanced stage of development, thus justifying overriding the
mothers right to avoid a genetic tie").
fertile couples differently by taking away any right IVF parents may
have to decide not to have offspring from the fertilized eggs. 6" In
the abortion context, the woman may choose whether or not to have
children by deciding to have an abortion before the embryo is
viable.1' 6 Similarly, the court should allow the IVF couple to choose
not to have children by destroying a frozen embryo, since the embryo
67
is not viable at this stage.
Further, it can be argued that the Court has recognized a protect-
able interest in not having biological children. 63 Because the Court
has not required a woman to give up a child for adoption instead
of having an abortion, the Court has arguably recognized the wom-
an's right to avoid biological children, even though she does not
have to raise them. 169 When granting this right, the Court undoubtedly
considered that because the woman's body is involved, forcing a
woman to have the child intrudes upon her bodily privacy. 170 Even
if the woman's body were not involved, however, the court should
still recognize that there is a privacy right encompassing the decision
to avoid biological children, so long as the state does not have a
compelling interest in protecting the embryo.' 7' Thus, in the case of
IVF, parents should be able to destroy their embryo based on the
165. See Robertson, supra note 14, at 290 (stating that restrictions on noncoital reproduction
should be subject to the same rigorous scrutiny as restrictions on coital reproduction). It can
be argued that since the couple has a choice to enter into the IVF process, it is not unfair to
require that they be required to donate any excess embryos to another couple. See supra note
15 (most IVF clinics require mandatory donation as a condition of entering into the program).
This is not necessarily an equal protection argument, but can be considered a policy argument
against mandatory donation in that mandatory donation treats infertile couples differently
simply because of their infertility.
166. See Roe v. Wade, 410 U.S. 113, 163 (1973).
167. See J. Saltarelli, supra note 2, at 1037. Applying the viability formula in Roe to the
pre-implantation embryo would give the egg donor the decision to terminate the embryo. Id.
However, there is an argument that the viability standard cannot be applied to an embryo
that can be sustained indefinitely outside the body. Id.
168. See generally Annas & Elias, supra note 33, at 209 (the Court has found a right not
to procreate).
169. See Roe, 410 U.S. at 153. Before viability, the woman is free to determine whether
her pregnancy should be terminated. Id. at 163.
170. See Roe, 410 U.S. at 154 (discussing the limits on the right to do with one's body as
one pleases).
171. See id. at 153. See generally Comment, Fetal Research Statutes, Procreative Rights,
and The "New Biology". Living in The Interstices of The Law, 21 SUFFoLK U. L. Rav. 723,
754 (1987) (advocating recognition of a fundamental right, independent of abortion and
contraception doctrines, to procreate, including creation, transfer, and storage techniques
embodied in non-coital methods of reproduction); Andrews, supra note 45, at 404 (allowing
a couple to decide whether or not to terminate an embryo would further the goals of having
children raised by those with a biological tie to them, and maintaining the physical and
psychological well-being of the progenitor).
Court's privacy decisions relating to abortion and reproductive choice.
2. Contraception Comparisons
The privacy interest in destroying an embryo is also similar to the

interests which the Court has protected in the contraception cases. 172
In Eisenstadt and Griswold, the Court protected the right of couples
to use contraceptives, thereby giving them the right to decide for
therjselves whether to have children. 173 The interest protected in the
contraception cases can be analogized to the privacy interest present
in the IVF context, since, in both cases, the couple decides not to
have children, one by using contraception, and the other by destroy-
ing the preimplantation embryo. 174 The preimplantation embryo that
is destroyed is essentially identical to the embryo that is destroyed
when one uses an IUD or other form of postfertilization birth
control.1 7s The only difference between the privacy interests in de-
stroying an IVF embryo and those implied in Eisenstadt and Griswold
76
is that the destruction of the embryo is in the context of IVF.1
172. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438
(1971). It can be argued that the state interest in that embryo is essentially the same as when
certain contraceptive devices (such as the IUD) are used which destroy an embryo of the same
maturity as a preimplantation embryo. See also Webster v. Reproductive Health Services, 109
S.Ct. 3040, 3080-81 (1989) (Stevens, J., dissenting) (stating that a statute declaring that life
begins at conception would certainly interfere with some constitutionally protected forms of
contraception). Since Eisenstadtstated that prohibiting the use of contraceptives unduly restricts
a couple's right to bear or beget children, it can be argued it is not a large step to insist that
the state not interfere with the couple's right to decide to not bear or beget a child in the IVF
context, including the decision to discard a preimplantation embryo, absent a compelling state
interest. Id. at 3059 (O'Connor, J., concurring) (stating that it may be correct that the use of
postfertilization contraception is constitutionally protected, even though an embryo is de-
stroyed). But see Test Tube, supra note 67, at 1303 (stating that Eisenstadt should not be
extended to acts not involving coital reproduction).
173. See supra notes 94-150 and accompanying text (describing the Supreme Court decisions
protecting contraceptive choices).
174. See generally Olsen, supra note 44, at 111 (1989) (establishing a link between abortion
and contraception, and stating that the court should treat abortion in the context of the
"overall program of women's control over their reproductive capacity"); Webster v. Repro-
ductive Services, 109 S.Ct. 3040, 3059 (1989) (O'Connor, J., concurring) (mentioning the
problem of discarding embryos in IVF, and stating that the plurality's opinion would probably
prohibit this action since it is protected by Griswold). See also Dickens, supra note 45 at 64
("Destruction of the embryo extra uterum may constitute contraception, as opposed to
abortion.").
175. See generally Robertson, supra note 115, at 192 (decisions concerning conception and
pregnancy are so central to personal identity that individuals should have control over them).
176. See supra notes 27-32 (in IVF the embryo is extrauterine). See generally Singer &
Kuhse, The Ethics of Embryo Research, 14 LAw, MEDIC. & HEALTH CARE, 133, 135 (1976)
(maintaining that it is illogical to argue that destruction of embryos is wrong because a potential
Arguably, the protections found in previous Supreme Court privacy

decisions protecting contraception may not extend to IVF because
the decision whether to have children may not be as private in the
context of IVF as it is in the context of coital reproduction. 77 IVF
may be considered less private because the initial procedures are
performed outside of the body. 78 When a fertile couple decides to
have children, the decision is usually made alone, in private, and
usually without input from doctors. 79 With IVF, however, before
the parents can decide to have children, they must consult a doctor
to discuss their chances for success, the cost of the procedure, and
the numerous medical concerns associated with IVF.5 0 Even though
this may distinguish the IVF situation from those involved in Gris-
wold and Eisenstadt, this distinction should not make the right to
decide not to have children any less fundamental.'' Even in conven-
tional pregnancy decisions, the advice of doctors and friends may be
sought. Since the privacy right involved is essentially the same,
infertile couples should not be treated differently than fertile cou-
2
ples. 18
3. Policy Considerations
Policy considerations may exist which would allow a couple some

latitude in deciding whether to destroy an embryo. One consideration
may be that if a couple with the ability to conceive normally may
person who might have existed will not now exist, since persons who condemn the destruction
of embryos for this reason do not equally condemn the use of contraceptives to limit family
size).
177. INFERTiLrrY, supra note 1, at 221. (the Court has stated that a relationship deserves
freedom from governmental interference to the extent that the objective characteristics of the
relationship make it an intimate personal relation).
178. See supra notes 24-33 and accompanying text (describing the IVF procedure).
179. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) ("[V]ould we allow the
police to search the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship.").
180. See generally INFERTIrLy, supra note 1, at 139-46 (outlining the cost, effectiveness,
and access to various infertility treatments). Usually, infertile couples will seek medical
assistance in order to have a child genetically related to them. Id. at 139.
181. See Robertson, supra note 14, at 290-91 & n.17. Although doctors and donors may
be needed, noncoital reproduction receives no less protection as a right of marital privacy. Id.
See generally Test Tube, supra note 67, at 1303 (discussion of the privacy aspects of IVF).
182. Robertson, supra note 14, at 290-91 & n.17. See also Andrews, supra note 45, at 403
(an Illinois statute, since repealed, gave a woman the same right to destroy the embryo that
she would have had had the embryo been conceived naturally). Eisenstadt v. Baird, 405 U.S.
438, 453 (1972) (the individual has a right to decide whether to have a child).
decide to have an abortion, a couple using IVF should also have

that same choice.' 83 A woman who decides to have the embryo
implanted inside her could later have an abortion. 81 4 The woman
should, therefore, be allowed to destroy the embryo before having
it implanted.
Some commentators have argued that important policy considera-
tions exist against allowing a couple to destroy an embryo. 8 5 Many
have concerns similar to those voiced in the abortion controversy,
namely, that allowing a couple to destroy an embryo so easily would
symbolize a disregard for human life. 186 These concerns, however,
are greatly diminished in the IVF context. 18 7 Since IVF is an expensive
procedure which couples undertake only after considerable fore-
thought, it seems unlikely that the procedure would be done in such
a way as to evidence a disregard for human life.' 88 When embryos
are created, couples probably intend to use most of the embryos, if
not all of them, in hopes of having a child. 18 9 If the time comes
when the couple no longer has a use for an embryo, as when they
cannot afford to pursue the procedure further or they simply cannot
conceive through IVF, the couple should have the choice to donate
or destroy that embryo. 19
The state may also have an interest in not requiring mandatory
donation of frozen embryos. Requiring the donation of the embryo
to another is similar to "selling" babies, which is clearly against
183. Robertson, supra note 14 at 290-91.

184. When the embryo is implanted, it is not yet viable, and presumably, the woman
would be able to get an abortion. See Roe v. Wade, 410 U.S. 113, 163 (1973).
186. The symbolic gains from requiring mandatory donation are slight when one considers
that few of these embryos will actually survive. Robertson, supra note 115, at 211. Further,
with widespread legal abortion, there is also little gain in saving embryos for purely symbolic
purposes. Id.
187. Andrews, supra note 45, at 404 (allowing a couple to destroy the embryo would in
actuality only lead to a small number of terminated embryos). Where some embryos are still
left after the goal of pregnancy is accomplished, many will donate the embryos to other
couples, and only a few embryos will be destroyed. Id.
188. See generally INFERTJLrrY, supra note 1, at 143 (the average couple completing all
four stages of the infertility procedures, from diagnosis to IVF, will pay $22,217, and will
have to continue the process for at least four and one-half years).
189. See generally id. at 295 (a mean of five eggs cells are recovered per procedure, and
a mean of four embryos transferred per cycle, leaving only one embryo per procedure not
used).
190. See Andrews, supra note 45, at 404 ("A strong argument can be made that it is
unconstitutional to prevent the progenitors from exercising decision-making control over their
embryos."). But see Dickman, supra note 37, at 831 (because IVF embryos are intentionally
produced, they should be treated differently than the fetus is treated in the abortion context).
public policy. 191 If not controlled, the embryo recipients may be able
to "shop around" for a suitable embryo, and may be able to reject
certain "unsuitable" embryos. 192 This would be abhorrent to many
who may view this as an initial step in creating a superior race. 93
Technology is rapidly approaching the point where the genetic makeup
of humans could be altered. 194 Finding a couple willing to implant
defective or otherwise undesirable embryos will be very difficult, and
this could lead to these embryos being frozen indefinitely. 95 Thus,
clearly, requiring all embryos to be implanted has its own unique
problems.
Looking at the similarity between the interests protected in the
abortion and contraception cases, and the decision to destroy the
embryo, along with the policy considerations that favor allowing a
couple to destroy the embryo, a court considering the issue should
hold that there is a fundamental privacy right to decide not to have
children by destroying the preimplantation embryo. Although there
are differences between IVF, abortion, and contraception, this should
not have an impact on the court's classifying the right to destroy a
preimplantation embryo as a fundamental right, since the privacy
rights in all contexts are substantially similar.9 6 The parents' individ-
ual interests are not the only interests that the court will have to
191. See generally Annas & Elias, supra note 33, at 215 (discussing the "slippery slope"
theory that pre-natal adoption, if allowed, would develop into selling humans, and would lead
to a belief that embryos and children are mere commodities). Selling humans would offend
the public's sense of morality. Id.; Boskey, Adoption, The Termination of ParentalRights
and Baby M, 18 SaToN HALL L. Rav. 866, 875 (comparing the payment of money in adoption
cases, and surrogacy). In the Baby M. case, the court noted that the payment of money in
surrogacy cases was even more likely than in the case of adoption since surrogacy involves a
middleman, motivated primarily by economic incentives, who may not look out for the interests
of the natural mother as it may jeopardize his or her fee. Id.
192. Id. While it may be argued that this is similar to adoption, in adoption, unlike IVF,
there is a child involved which is voluntarily given up by the mother. In cases where the child
is forcibly taken away, the state has found the parents not suitable to raise the child. Further,
with adoption, a born child is involved, and clearly the state's interest is at its greatest level.
However, with mandatory donation, an embryo is involved, and the state's interest may not
be as great. Further, the embryo is taken away from the biological parents involuntarily. Thus,
there are differences between mandatory donation and adoption that may be considered by
legislatures or courts when deciding whether such a mandatory donation policy would be
desirable.
193. See Lauroesch, Genetic Engineering: Innovation and Risk Minimization, 57 Gao.
WASH. L. Rnv. 100, 116 (1989) (research designed to enhance certain desirable characteristics
is likely to progress in the future and may encourage man to "play God").
194. Id.
195. See generally INrERzTrry, supra note 1, at 253 (implanting grossly abnormal embryos
may be a violation of the duty of care that a doctor must give to the patient).
196. See supra notes 94-128 (discussing the privacy decisions protecting contraceptive
choices).
consider, however. While the court may determine that the couple
has a fundamental right to decide whether or not to destroy the
embryo, the court must still consider the state's interest in the
97
embryo.1
IV. STATE INTERESTS
Assuming that a court finds that the decision to destroy a preim-

plantation embryo is a fundamental privacy right, the next issue is
whether the state's interests are sufficiently strong to justify interfer-
ence with this right. For the state to deny a couple the choice to
destroy the embryo, the state's interest in preserving that embryo
must be compelling.' 9 8 In deciding whether a mandatory donation
law is constitutional, the rights of the parents must necessarily be
weighed against the state's interests in protecting potential life. 99 The
Supreme Court decisions relating to abortion analyze the state's
interest in potential life, the same state interest involved in mandatory
donation laws. 200 Thus, an analysis of the abortion decisions may
provide some insight as to the extent of the state interest in mandatory
donation, and whether these interests may be sufficiently compelling
to overcome an individual's privacy right to destroy a preimplantation
embryo .21
A. Abortion Decisions
In Roe v. Wade,20 2 the Court found that an unborn fetus, in the

context of the fourteenth amendment, is not a "person." 20 3 The
Court found that abortion fell within the zone of privacy protected
197. Robertson, supra note 115, at 192. Unless there are compelling state interests, the
government should not be able to interfere with fundamental privacy interests. Id.
198. See generally Test Tube, supra note 67, at 1300.
200. See Annas & Elias, supra note 33, at 209 (the only possible compelling state interest
would be respecting the embryo in order to keep respect for human life).
201. See generally, Robertson, supra note 114, at 210 ("Roe v. Wade, however, will be
more directly relevant to the techniques that involve creation and manipulation of embryos
outside the body.").
202. 410 U.S. 113 (1973).
203. Id. at 158. "All this, together with our observation ... that throughout the major
portion of the 19th century prevailing legal abortion practices were far freer than they are
today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not
include the unborn." Id.
by the fourteenth amendment, and declared that a woman has a

fundamental right to decide to terminate her pregnancy. 204 The right
to have an abortion, however, has its limits. 25
In Roe, the Court found that the state has justifiable interests in
protecting both the health of the mother and potential life, and that
both interests become compelling at different times. 2 s The Court also
held that viability, 207 approximately at the end of the second trimester,
is the point at which the state's interest in protecting203
the fetal life
both logically and biologically becomes compelling.
The Supreme Court has decided several cases after Roe that illustrate
the parameters of the right to abortion. 2 9 The Court held in Planned
Parenthood of Missouri v. Danforth210 that because the woman is the
person directly and immediately affected by the pregnancy, she alone
may make the ultimate decision to terminate the pregnancy.2 1I The
Court also stated that medical skill and technology could determine
the point of viability.212 In 1982, in Akron v. Akron Center for
Reproductive Health,2 3 the Court invalidated a statute requiring that
all second trimester abortions be performed in a hospital. 21 4 In Maher
204. Id. at 153. See supra note 154-61 (discussing the privacy interests involved in abortion
compared to IVF).
205. "The pregnant woman cannot be isolated in her privacy. She carries an embryo and,
later, a fetus .... The situation therefore is inherently different from marital intimacy, or
bedroom possession of obscene material, or marriage, or procreation or education . . . ." Roe,
410 U.S. at 159.
206. Roe, 410 U.S. at 155 (the state must have a compelling interest to justify interference
with certain fundamental rights); Id. at 163 (the state has legitimate interests in protecting
maternal health and potential life of the fetus). The Court held that at the end of the first
trimester the state's interest in protecting the health of the mother becomes "compelling,"
since this is when the abortion mortality rate may be higher than the mortality rate in normal
childbirth. Id. at 163.
207. Viability is defined in Roe as the point at which the fetus could live outside the
womb, even though it required artificial aid to do so. Id. at 160.
208. Roe, 410 U.S. at 163 (adopting the trimester framework as a standard to roughly
determine viability). See generally N.Y. Times, Aug. 29, 1989, § C, at 3 (describing a new
technology that may be able to push back the point at which a fetus is viable).
209. See, e.g., Akron v. Akron Center For Reproductive Health, 462 U.S. 416 (1983);
Maher v. Roe, 432 U.S. 464 (1977); Missouri v. Danforth, 428 U.S. 52 (1976), Webster v.
Reproductive Services, 109 S.Ct. 3040 (1989).
210. 428 U.S. 52 (1976).
211. Id. at 71.
212. Id. at 61. "The time when viability is achieved may vary with each pregnancy, and
the determination of whether a particular fetus is viable is, and must be, a matter for the
judgement of the responsible attending physician." Id. at 64.
213. 462 U.S. 416 (1983).
214. Id. at 438-39. The Court stated that while a state's interest in the woman's health
becomes compelling at the end of the first trimester, any regulations imposed by the state
must reasonably further a legitimate state interest. Id. at 434. The Court found that abortions
could be performed as easily and safely in outpatient clinics. Id. at 452.
v. Roe, 2 5 the Court held that although a woman has a right to an

abortion, the state need not promote that decision, and thus the state
216
is not required to fund abortions for indigent women.
Recently, a divided Court seemed to retreat from its decision in
Roe. In Webster v. Reproductive Services,2 7 the Court upheld several
sections of a Missouri statute, including the preamble which stated
that life begins at conception, one section which made it unlawful
for public employees to perform abortions unless necessary to save
the life of the mother, and another section making it unlawful to
2 18
use public funds to encourage or counsel women to have abortions.
Another section of the statute presumed viability at twenty weeks
and required the doctor to rebut this presumption with tests indicating
that the fetus is not viable. 2 9 This section was determined to be
constitutional by a plurality of the court, consisting of Chief Justice
Rehnquist, and Justices Kennedy and White.220 The plurality also
struck down the trimester system set up in Roe, stating that it is
inconsistent with a "Constitution cast in general terms."221 The
plurality asserted that the state's interest in potential life does not
necessarily become compelling only at viability. 2 Chief Justice Rehn-
quist stated that if a compelling state interest exists at the point of
viability, it follows that a compelling state interest exists throughout
pregnancy. 223 However, because this part of the opinion was not
215. 432 U.S. 464 (1977).

216. Id. at 474 (stating that there is a difference between direct state interference with a
fundamental interest, and state promotion of an alternative interest). See also Webster v.
Reproductive Health Services, 109 S.Ct. 3040, 3050 (1989) (stating that the preamble of the
Missouri statute, stating that life begins as conception, can be interpreted merely as a value
judgement by the state).
217. 109 S.Ct. 3040 (1989).
218. Id. at 3049, 3050-51, 3053.
219. Id. at 3058.
220. Id. at 3054-58.
221. Id. at 3057. Justice O'Conner, concurring in the judgment, stated that while she had
problems with the trimester system as well, she did not feel that the Webster case ran afoul
of the Roe trimester system, and thus Webster was not the case to decide to strike down this
aspect of Roe. Id. at 3060-61 (O'Connor, J., concurring).
222. Id. at 3057. This section of the opinion was written by Chief Justice Rehnquist, and
joined by Justices Kennedy and White. Justice Scalia would have overturned Roe altogether,
and stated that he agreed with the dissent in Doe v. Bolton. Id. at 3064 (Scalia J., concurring).
See Doe v. Bolton, 410 U.S. 179, 221-23 (1973) (White, J., dissenting) (stating that there is
no constitutional warrant for requiring the state to value the convenience of the pregnant
mother over the development of potential life).
223. Webster, 109 S.Ct. at 3057 ("[W]e do not see why the State's interest in protecting
potential human life should come into existence only at the point of viability, and there should
therefore be a rigid line allowing state regulation after viability but prohibiting it before
viability.").
joined by a majority of the Court, it is not binding, and thus it

remains to be seen whether the state's interest may be "compelling"
from the point of conception. 224 The plurality decision gave the states
more discretion in deciding when a state's interest becomes compel-
ling, by questioning whether the state's interest becomes compelling
only at viability? 5
Justice Blackmun, dissenting, addressed the plurality's argument
that the state's interest in potential human life is compelling through-
out pregnancy.? 6 Justice Blackmun argued that there is a difference
between the interest of the state in protecting the fertilized egg and
that of protecting the nine month-old fetus. 22 7 Justice Blackmun
explained that the state's interest increases "as the organism's ca-
pacity to feel pain, to experience pleasure, to survive, and to react
to its surroundings increases day by day.' 228 Because there was no
majority opinion on this issue, viability is still the point at which the
state's interest becomes compelling, and until the point of viability,
229
the woman's interest in privacy outweighs the state's interest.
To decide whether the state's interest in potential life is compelling
in the case of a mandatory donation law, the nature of the state
interest in the abortion cases can be compared to the state interest
in the mandatory donation law. If the interests are sufficiently similar,
a court may use an analysis of the state interest in the abortion
context in order to evaluate the state interest in potential life when
mandatory donation laws are concerned. 2 0
224. See id. at 3046 (because there was no majority for Parts II-D and III of the Webster
opinion, in which the plurality asserted that the state's interest does not necessarily become
compelling only at the point of viability, these parts are not binding). However, Justice Scalia
would overrule Roe altogether. Id. at 3064 (Scalia, J., concurring). Further, Justice O'Connor
has previously stated that she feels that if the state's interest in potential life is compelling at
viability, it must be compelling before viability as well. Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, 459-66 (1983); Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 828 (1986) (O'Connor, J., dissenting).
225. Webster, 109 S.Ct. at 3057. Justice Rehnquist asserted that the state's interests may
be compelling at any point during the pregnancy, and that the state in this case happened to
choose viability as the point at which its interest became compelling. Id.
226. Id. at 3075 (Blackmun, J., dissenting). Justice Blackmun was joined by Justices
Brennan and Marshall in dissent. Id. at 3067.
227. Id. at 3075.
228. Id.
229. See generally, Robertson, supra note 115, at 201-09 (discussing the reason for, and
possible implications of, the viability line).
230. See infra notes 150-172 and accompanying text (comparing the state interest in
mandatory donation with the state interest in abortion).
B. State Interests Implicated in the Destruction of an Embryo in

the Context of IVF
There has been one Tennessee state court decision involving the
status of pre-implantation embryos in the context of IVF. In Davis
v. Davis, 23 ' a husband and wife clashed over the custody of seven
frozen embryos. 2 2 The couple participated in an IVF program, but
before the embryos could be implanted the couple filed for divorce.233
The husband wanted the embryos destroyed, since he did want to
father any biological children with his wife. 2 4 The wife, however,
feeling that this might be her only chance to bear children, wanted
to have the embryos implanted in her womb. 235 The Tennessee Circuit
Court found that life begins at conception, that the embryos should
be implanted, and that the most logical choice would be to implant
them in Mrs. Davis. 236 The circuit court distinguished the abortion
cases, which held that the state's interest in preserving potential life
becomes compelling at viability, by limiting those cases to abortion
7
alone.2
Although the Davis case purports to define the state's interest in
the pre-implantation embryo in the IVF context, the trial court did
not give any reasons as to why the state's interests in the context of
IVF are different than in the context of abortion. 23 Further, the
holding in Davis, that the embryo is life from the moment of
conception, is inconsistent with the Supreme Court's analysis as to
when life begins for purposes of the fourteenth amendment. 239 The
231. Davis v. Davis, Circuit Court for Blount County, Tenn., No. E-14496 (Sept. 21,
1989).
232. Id.at 1.
233. Curriden, Frozen Embryos The New Frontier, ABA JOURNAL, August, 1989 at 68.
234. Id.
235. Id.
236. Davis at 2.
237. Id. at 17-18.
238. The court simply stated: "The Court understands that both Roe and Webster dealt
with questions of the constitutionality of abortion statutes, and the Court's decisions in those
cases have a profound effect on the states' compelling interest in the protection of human
life, but only as it deals with the abortion law." Id.
239. See Roe v. Wade, 410 U.S. 113, 157 (1973). See generally Comment, "Fetal Research
Statutes, ProcreativeRights, and The "New Biology". Living In The Interstices of The Law",
21 SUFFOLK U. L. Rav. 723, 735-36 (1987). "[Ihe right not to procreate depends on the
viability timetable devised by [the Roe] Court in balancing the competing interests of the state,
the mother, and the fetus." Id.
abortion cases are the most significant decisions in which the Court
has considered the interest of the state in preserving "potential life"
as balanced against a woman's privacy interests.24 The context of
mandatory donation is similar to that of abortion, in that both
involve a conflict between individuals' privacy interests in deciding
whether or not to have children, and the state's interest in protecting
potential life. 24 ' There are differences between IVF and abortion,
however, which may alter a court's analysis.2 42
In Roe v. Wade, the Court stated that the unborn child is not a
"person" under the fourteenth amendment, but the Court also
declared that the state has an interest in protecting "potential" life,
and that this interests becomes "compelling" at the point of viabil-
ity.2 43 The Court has stated the interests of the state are not sufficient
prior to viability to justify interference with the woman's fundamental
privacy right to abortion. 2 " It is unclear, however, whether the state's
interest in potential life is a constant, or whether the state interest
in "potential life" gradually increases as the embryo develops, until
at some point the state interest becomes compelling enough to justify
intervention. 24
240. See Roe, 410 U.S. at 154 (concluding that there is a privacy right to have an abortion,
but that it is not an unqualified right, and must be considered in light of important state
interests in regulation).
241. But see Saltarelli, supra note 2, at 1039 (there is no conflict between a woman's
privacy rights, found by the Court in Roe, and the preimplantation embryo's existence).
242. While the issue of mandatory donation is similar to abortion in that it involves a
"potential life," the "potential life" involved in IVF is necessarily limited to a six to eight
celled embryo. See supra notes 47-53 and accompanying text (describing the biological status
of the preimplantation embryo). An embryo that is only six to eight cells has only a slight
prospect of becoming a "person" or even a fetus, even if it was implanted in a uterus, since
in expert IVF programs embryo transfer has led to live birth only 15% of the time, and in
regular clinics only 11% of the time. INFERTrLrrY, supra note 1, at 295.
243. See Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3083 & n.13 (Stevens,
J., dissenting) (no member of the Court has ever questioned the holding in Roe that a fetus
is not a person; otherwise abortion would be prohibited altogether).
244. See Roe, 410 U.S. at 163. However, the state can interfere with the abortion right in
order to protect the health of the mother after the first trimester. Id. But see, Webster, 109
S.Ct. at 3057 (stating that the state interest in potential life does not necessarily become
compelling only at viability).
245. See Doe v. Bolton, 410 U.S. 179, 218 (1972) ("Additionally, the statute is overbroad
because it equates the value of embryonic life immediately after conception with the worth of
life immediately before birth."). But see Akron v. Akron Center for Reproduction Health,
462 U.S. 416, 460-61 (1983) (O'Connor, J., dissenting):
In Roe, the Court held that although the state had an important and legitimate
interest in protecting potential life, that interest could not become compelling until
the point at which the fetus was viable. The difficulty with this analysis is clear:
potential life is no less potential in the first weeks of pregnancy than it is at viability
or afterward. At any stage of pregnancy there is the potential for human life.
Id. (emphasis in original).
Justice Blackmun, dissenting in Webster v. Reproductive Services,

argued that, unless the theory that life begins at conception is
adopted, the condition of the fetus is not static, and the further the
2 6
fetus develops towards birth the greater the state's interest becomes. 4
Using this "sliding scale" analysis to evaluate the state interest in a
pre-implantation embryo, the state's interest clearly would be at its
lowest ebb, since the embryo has no capacity to feel, experience pain,
or survive independent of the womb. 247 Even if viability were no
longer the standard, a court would not be likely to find the state
interest "compelling" at a point prior to implantation, unless the
court were willing, in effect, to decide that no fundamental privacy
right to abortion exists.
In Webster, the plurality stated that the state interests do not
necessarily become compelling only at the point of viability, but may
be compelling throughout pregnancy. 249 If this position is adopted,
arguably the interests of the state in the potential life of the embryo
outside the womb are different from the state interests when the
embryo is already in the womb. When the embryo is outside the
womb, another step must be taken before the embryo can develop
into a human: it must be implanted.250 This makes IVF distinguishable
from abortion, where the embryo is already inside the womb, and if
left alone would presumably develop into a human.251 Because of
this difference, a court considering the issue may decide that the
state interest in protecting the pre-implantation embryo is not com-
25 2
pelling, even though it may become compelling upon implantation.
246. Webster, 109 S.Ct. at 3075 (Blackmun, J., dissenting) (quoting Thornburgh v. Amer-
ican College of Obstetricians & Gynecologists, 476 U.S. 747, 778-79 (1986) (Stevens, J.,
concurring)).
247. See supra notes 54-86 and accompanying text (discussing the biological status of the
preimplantation embryo).
248. The view that life begins at conception is premised on a theological basis, and as
such would not be upheld as valid legislation. Webster, 109 S.Ct. at 3082 (Stevens, J.,
dissenting). Prior to implantation, the embryo is "viable" in the sense that it can exist outside
of the body of the biological mother by being implanted in the body of a willing recipient.
Because Roe and its progeny involved only post implantation fetuses, this option was not
considered-medical science can preserve a post-implantation fetus only after it has matured
enough to reach the point where it can survive outside of any womb. When these practical
differences are combined with the reduced physical invasion of privacy involved in the IVF
context, a court could conclude that the state's interest is compelling at two points: pre-
implantation and post-viability. See supra notes 150-173 and accompanying text (describing
the differences and similarities between the privacy interests involved in abortion and IVF).
249. Webster, 109 S.Ct. at 3057.
250. See supra notes 24-32 and accompanying text (describing the IVF procedure).
251. Id.
252. But see supra note 248 (stating that this difference may also be enough to justify
After analyzing the parent's privacy interests in destroying the

embryo, and the state's interest in preserving potential life through
a mandatory donation law, a court would have to weigh the various
interests asserted in order to decide whether a mandatory donation
law would be constitutional.
V. CONCLUSION
The United States Supreme Court has found that a fundamental

right to privacy extends to many areas of reproduction, including
the right to birth control, procreation, and abortion. 2"s Because of
the fundamental nature of these rights, the state must prove a
compelling interest in order for the Court to interfere with any of
these privacy rights. 2 4 While most commentators recognize that a
fourteenth amendment right to privacy exists, the scope of this right
is unclear.255
When deciding whether a couple has a right to destroy a pre-
implantation embryo, a court should first decide whether the embryo
constitutes "life. ' 25 6 Most commentators agree that while the embryo
should be given more respect than mere property, the embryo should
not be given the status of life. 257 If the embryo is not life, the couple
should have a right to destroy the embryo, unless there is a state
258
interest that would outweigh that right.
The Supreme Court has found that the right to privacy encompasses
many areas of reproductive and family privacy. 259 Thus, it is arguable
that an infertile couple's interests in not having children should also
be included as part of the right to privacy. A court should analogize
the destruction of the embryo to post-fertilization contraception,
which the Supreme Court has protected in Eisenstadt and Griswold.26
preimplantation as the point at which the state's interest becomes compelling in the case of
IvF).
253. See supra notes 94-150 (discussing the right to privacy).
254. Id.
255. See Robertson, supra note 115, at 190-191 & n.13. In modern constitutional law the
legitimacy and scope of substantive due process is an ongoing jurisprudential issue. Id.
256. See supra notes 54-86 and accompanying text (describing the status of the embryo).
257. See supra notes 70-76 and accompanying text (describing the theory that the embryo
is not human, but should not be treated as mere property).
258. See Andrews, supra note 45, at 406 "The burdens on the couple of overriding their
decision-making control over the embryo are great. In contrast, few claims of harm can be
made on behalf of the embryo. It is not viable, and has no right to life." Id.
259. See supra notes 88-150 and accompanying text (discussing the right to privacy).
260. See supra notes 151-198 (comparing the right to privacy decisions with mandatory
donation).
Further, the privacy interest in being able to decide to not have

children is a right the Court has protected in the context of abortion,
and should logically be extended to the area of IVF as well. 261 Because
of these similarities, a court considering the issue should extend the
right to privacy to allow a couple to decide not to have children by
destroying the IVF embryo. While the woman's body is not involved
in the case of IVF, there nevertheless should be a protected privacy
interest to decide whether to have children, although the privacy
interest may be somewhat weaker than the interest protected in Roe
262
V. Wade.
Although the court may conclude that the couple has a fundamental
right to destroy the embryo, the state may interfere with that right
if there is a compelling state interest in protecting the potential life. 263
In the cases dealing with abortion, the Supreme Court has found
that the state's interest in potential life does not become compelling
until the fetus is viable. 264 If this standard is also used in the context
of IVF, then clearly the state's interest is not compelling since the
pre-implantation embryo is not viable. 265 If the court does not use
the viability standard, and finds that the state interest in the embryo
is compelling throughout pregnancy, it does not necessarily follow
that the state interest in the preimplantation embryo would also be
compelling. 266 Before implantation, the embryo still must go through
one step before it can begin developing into a human: it must be
implanted. 267 This may render the state's interest in the pre-implan-
tation embryo less significant than when the embryo is already
implanted, and not compellent enough to interfere with the couple's
privacy interests.
Kim Schaefer
261. Id.
262. In Roe, the Court considered both the bodily privacy and the psychological interests
when granting the right to an abortion, and since there is less concern about bodily privacy
in the case of mandatory donation, the privacy interests may be weaker. Roe v. Wade, 410
U.S. 113, 153 (1973).
263. See supra notes 198-230 and accompanying text (describing the possible state interests).
264. Roe, 410 U.S. at 163 (1973).
265. C.f. Saltarelli, supra note 2, at 1037 (viability standard cannot be applied to a pre-
implantation embryo since an embryo can be sustained indefinitely outside the mother's body).
266. See Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3059 (1989) (O'Connor,
J., concurring) (stating that postfertilization contraception may be protected, even though it
destroys the preimplantation embryo).
267. See supra notes 24-33 and accompanying text (describing the process of IVF).

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McGeorge Law Review

Volume 22 | Issue 1 Article 6

In-Vitro Fertilization, Frozen Embryos, and the

Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr

1. In-vitro fertilization is a sophisticated infertility treatment that involves obtaining

I. IVF AND CRYOPRESERVATION

IVF gives an infertile couple the opportunity to conceive their own

22. See infra notes 199-253 and accompanying text.

Cryopreservation is the process of freezing and storing the embryo

mosomes. 3s Also, eggs cannot be maintained outside of the body as

II. STATUS OF THE EMBRYO

The question is, essentially, one pondered by scholars and philo-

A. Medical Status of the Embryo

In IVF, the fertilized egg (zygote) is implanted in the uterus

to eight weeks after fertilization. 52 Knowing the basic medical status

B. Three Theories on the Status of The Embryo

The first theory is that life begins at conception. This theory

were life, however, more of an effort would be made to save these

tation to charge a woman for murder after having an abortion. This

68. See, e.g., Robertson, supra note 14, at 295.

Furthermore, this theory balances scientific technology with the need

III. RIGHT TO PRIVACY

The question of whether parents have a fundamental right to

A. Marriage and Reproductive Privacy

Under the penumbra of the fourteenth amendment, 93 the Court

In Eisenstadt v. Baird,1'0 the Court invalidated another contracep-

100. 405 U.S. 438 (1972).

The right to privacy, however, does not extend to all aspects

interests, believing instead that the focus should be on interests that

fore are protected from unjustified governmental intrusion. 13 2 Because

C. Privacy Rights Involving the Destruction of an IVF Embryo

For a court to protect as a fundamental right a couple's decision

In comparing the decision to destroy the embryo in the context of

148. Id. at 3075.

IVF context. In IVF, as opposed to abortion, the woman's body is

Court's privacy decisions relating to abortion and reproductive choice.

The privacy interest in destroying an embryo is also similar to the

Arguably, the protections found in previous Supreme Court privacy

Policy considerations may exist which would allow a couple some

decide to have an abortion, a couple using IVF should also have

183. Robertson, supra note 14 at 290-91.

IV. STATE INTERESTS

Assuming that a court finds that the decision to destroy a preim-

In Roe v. Wade,20 2 the Court found that an unborn fetus, in the

by the fourteenth amendment, and declared that a woman has a

v. Roe, 2 5 the Court held that although a woman has a right to an

215. 432 U.S. 464 (1977).

joined by a majority of the Court, it is not binding, and thus it

B. State Interests Implicated in the Destruction of an Embryo in

Justice Blackmun, dissenting in Webster v. Reproductive Services,

After analyzing the parent's privacy interests in destroying the

The United States Supreme Court has found that a fundamental

Further, the privacy interest in being able to decide to not have

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