Chapter 7.D.3 (or 5.D.3) -- In Vitro Fertilization and Frozen Embryos


For an article on whether infertility treatment costs can be deducted as a medical expense under the Internal Revenue Code, see Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 Cornell L. Rev. 1121 (2004).


Restrictions on insurance coverage for infertility treatments continue to attract litigation. See, e.g., Saks v. Franklin Covey Co., 316 F.3d 337 (2nd Cir. 2003)(holding that exclusions of coverage for male and female infertility treatments did not violate the Pregnancy Discrimination Act or Title VII’s ban on sex discrimination). 


Notes: Frozen Embryo Disputes


Note 1. Family, Property, or Contract Law?


See also, Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses, 40 Wake Forest L. Rev. 159 (2005); Ellen Waldman, The Parent Trap: Uncovering the Myth of “Coerced Parenthood” in Frozen Embryo Disputes, 53 Am. U. L. Rev. 1021 (2004) (discusses and critiques the dominance of the right to not procreate in frozen embryo disputes).


The Iowa Supreme Court recently confronted the debate in a dispute where one party changed their   mind regarding the disposition of frozen embryos. See In re Whitten, 672 N.W.2d 768 (Iowa 2003) (“While we agree with Tamera that the informed consent signed by the parties at the request of the medical facility does not control the current dispute between the donors over the use or disposition of the embryos, we reject Tamera's request that she be allowed to use the embryos over Trip's objection. Therefore, we affirm the trial court's order that neither party may use or dispose of the embryos without the consent of the other party”). The National Conference of State Legislatures tracks state legislation governing frozen embryos. See

htm  (last visited July 20, 2006).


Note 4. Genetic Parenthood and Frozen Embryo Disputes.


The Litowitz case discussed in Note 4 has enjoyed a tangled procedural history. The decision was amended slightly in In re Marriage of Litowitz, 53 P.3d 516 (2002) (concurring and dissenting Justice Chambers would “remand for further proceedings based on contract principles, equity, and public policy.”) The U.S Supreme Court denied certiorari sub nom. Litowitz v. Litowitz, 537 U.S. 1191 (2003).


New Note 6. Lost Embryos; Donated Embryos.


Should couples be permitted to sue infertility centers that lose or destroy frozen embryos?  See Gretchen Ruethling, Couple Can Sue Over Lost Embryos, February 8, 2005, at A18, col. 1 (trial judge authorizes wrongful death action because Illinois legislature has established that life begins at conception).  Charles P. Kindregan, Jr. and Maureen McBrien, Embryo Donation: Unresolved Legal Issues in the Transfer of Surplus Cryopreserved Embryos, 49 Vill. L. Rev. 169 (2004).