On Owning an Embryo

In vitro fertilization (IVF) is a fertilization process through which people implant a fertilized ovum into the uterus and is often used for people who have struggled to conceive. My parents used IVF to have my brother and me after facing a number of fertility struggles in the early 2000s. However, the question of who actually owns the pre-embryo prior to implantation can be complex, especially in cases of divorce. Embryos that have not been implanted into a uterus, pre-embryos, seem to sit in an intermediate space between property and individual rights because of their “potential for life”. For the sake of this article, pre-embryos will be treated as property.

While courts would apply the law from In re Marriage of Rooks to resolve this dispute, we can nevertheless gain a better understanding by looking at it through the lens of Popov v. Hayashi. In Popov, two men had a dispute over the ownership of Barry Bonds record breaking home run baseball. While Popov was the first one to touch the ball, it fell during a scuffle, and Hayashi ultimately walked away with the ball. The court adopted a rule which states that, “[w]here an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.” The court held that Popov satisfied all of the elements for pre-possessory interest and that he was entitled to an equal interest in the ball with Hayashi.

This doctrine of pre-possessory interest provides insight into resolving disputes over who gains possession of an embryo in the context of a divorce. An actor gains pre-possessory interest in personal property when they undertake significant but incomplete steps to achieve possession of unowned personal property, and the effort is interrupted by the unlawful acts of others. Both the ovum from the woman and the sperm from the man indicate significant but incomplete steps toward achieving possession of a pre-embryo. The fertilization lab then takes steps to combine the cells and grow them into a pre-embryo that can be implanted. To prove that one party has a more significant claim over the pre-embryo than the other, they must provide evidence that the other party interrupted full possession through unlawful acts. In a divorce, this may be the unlawful destruction of a pre-embryo without the consent of both parties or the unlawful obstruction of one party by another. If both the woman and man have committed unlawful acts to obstruct possession of the pre-embryo, the rightful owner of the pre-embryo would be the fertilization lab, as it is the only party that has had full possession of the pre-embryo at any point in the dispute. The rule established in Popov leaves ownership uncertain and highly dependent on the situational facts of a case.

Obviously, disputes like this are far more nuanced in reality. The rule articulated in Popov fails to yield a result that would be fully satisfactory to any party. The rule set forth in Rooks establishes a six-part balancing test to determine the intent of both parties and the burdens each party might suffer. This test considers six factors, including the intended use of the spouse who wants to keep the pre-embryos, whether they have the means to have biological children through other methods, their original reasons for pursuing IVF, the hardship faced by the spouse trying to avoid becoming a genetic parent, whether one spouse is trying to use the pre-embryos as leverage in divorce proceedings, and other relevant considerations. The court also specified that certain factors should not be considered, such as whether the spouse seeking to use the pre-embryos can afford a child, how many children they already have, and whether adoption is a feasible alternative. This approach takes into account factors beyond unlawful acts, which may be difficult to prove in real-world scenarios. 

IVF has increasingly been the focus of reproductive rights challenges in the United States. Since the Dobbs v. Jackson Women’s Health Organization decision in 2022, different methods of abortion and fertilization have been called into question. The pressing question at the moment is whether pre-embryos qualify as people with individual rights or as property. If they are treated as having individual rights, pre-embryos may be subject to a different set of laws than if they are governed by property law, potentially further harming the autonomy of couples seeking fertilization treatment and opening up liability to fertility clinics seeking to assist them.

Olivia Reichardt is a student at American University Washington College of Law. She is from Monument, Colorado and currently works for the podcasting team on the Human Rights Brief.

Image: Narrissa P Spies, M. capitata gamete bundles.