Marina Merjan


In-vitro fertilization (IVF) is the process by which a woman’s eggs are extracted, fertilized and frozen, and then reintroduced into her body to develop. IVF has rapidly grown in popularity over the past couple of decades. The law surrounding the technology, however, has been slow to keep pace. The law on “natural” pregnancies, although at times controversial, is nonetheless well settled—if a woman becomes pregnant she has exclusive decisional authority over whether or not to keep the pregnancy. Legally, the father has no right to make this decision with or for her. The major principle underlying the law on natural pregnancies is that a woman’s bodily integrity is fundamentally implicated in the process. With IVF, this principle is seemingly absent in the stage before the embryo has been implanted back into the body. Because of this, courts have struggled in resolving IVF cases where the conceiving couple no longer agrees over the fate of their frozen embryos. Consequently, a patchwork of legal approaches to resolving embryo “custody disputes” has emerged from the state courts. This Comment explains the history and process of IVF, highlights the major cases on the topic, and suggests that the most efficient and fair way to resolve these disputes is to give exclusive decisional authority to the women whose eggs were used to create the embryos at issue.