An important issue surrounding frozen embryos has recently emerged into spotlight: What happens when parents die and leave no will or instructions for the fertility clinic regarding the disposition of their frozen embryos? A Master in Chancery appointed by a Dallas probate court has recommended that a two year old boy, whose parents were murdered, inherit their eleven frozen embryos when he turns eighteen. John Robertson, professor of law at the University of Texas at Austin, addresses the groundbreaking nature of this case in the Harvard Law Petrie-Flom Center Blog by stating that “there are no Texas or United States cases involving inheritance of frozen embryos when both parties have died and left no instructions with the clinic or in a will.”
This issue introduces the question of whether frozen embryos are considered “property” in these types of scenarios. Robertson informs us that the Master found that Texas courts have not held them to be property, nor have they found them to be worthless. He reports that as a result, the Master assigned them an implicit value under Texas’s intestacy statute since they can be the subject of an enforceable contract. If they embryos are not designated as “property,” the Master found that the boy can still retain an “ownership interest” that would give him “dispositional control” over the eleven embryos.
Robertson introduces the complex issues that arise from giving a two year old orphan dispositional control over his future siblings when he turns eighteen, including the “oddity” of asking someone so young to “decide whether to continue paying storage fees, discard [the embryos], or donate to others or to research.”
This case illustrates the various complications that ensue when parents who create embryos fail to leave directions for what should occur to their frozen embryos if they both die. Difficult, ethically questionable inquiries such as whether frozen embryos are considered property or what an eighteen year old should do when he receives control over his potential siblings are avoidable. This begs the question as to whether it is the clinic’s obligation to mandate that all intended parents create a will prior to creating embryos instructions regarding the embryos’ disposition in the event of their death.