When’s the last time you asked a man if he’d rather freeze sperm or embryos?” 

I ask this question often in my talks —after a few initial chuckles, an “aha” moment often comes across the faces of many attendees, as the answer becomes obvious: “Never.” Before IVF and egg freezing, women didn’t have the same luxury men had to preserve fertility. IVF offered the opportunity to freeze embryos with a spouse, partner or donor. Egg freezing later made it possible for women to preserve their future fertility on their own terms, without compromising their autonomy or risking their hopes of motherhood to a former partner’s veto or to the expenses, delays and uncertainties of litigation over IVF frozen embryos. 

Yes, I’m familiar with medical arguments for freezing embryos, e.g., you know what you have, preimplantation genetic testing is available and couples — including those facing a medical crisis such as cancer — are not confronted with the possibility they may uncouple at some future point. But given ever-improving pregnancy rates from frozen eggs, and the newly precarious state of women’s reproductive autonomy rights, in many cases, the balance has shifted from freezing embryos to eggs.  

A Very Short Legal History of “Divorcing Embryos”

Lawsuits between divorcing spouses over use or discard of their IVF-created frozen embryos — what I often call “divorcing embryos” — began with the seminal 1992 Tennessee Supreme Court case Davis v. Davis, and unfortunately continues to this day (1). Since Davis, courts have considered applying one of three tests: (1) was there a valid dispositional contract?; (2) if not (and sometimes even if there is a contract) whether to balance the couple’s competing interests and constitutional rights to procreate or not procreate?; and (3) can the couple reach a contemporaneous agreement? Current legal and policy debates have only increased tensions and uncertainties in the wake of Dobbs’ overturning of Roe v. Wade; the Alabama Supreme Court’s ruling in LePage that IVF frozen embryos are legally equivalent to born children; and the resurgence of “personhood” initiatives that often define life beginning at “fertilization” (2).

Two very recent lawsuits from intermediate appellate courts (EB v. RN in Ohio in 2024 and Markiewicz v. Markiewicz in Michigan in 2025) are sobering reminders of both the importance of legal agreements and how IVF embryos continue to engender painful vulnerabilities for patients. 

The EB case is a rare instance where a court prioritized the procreative interest of an ex-wife, a cancer survivor, over her ex-husband’s post-IVF objection (he wanted to avoid ties to any resulting children) (3). The couple had executed their clinic’s  “Disposition of Embryos” contract, but disagreed over whether it was ambiguous as to use.  

The court enforced the contract, ruling that by jointly deciding to create embryos to achieve a pregnancy, both parties had exercised their constitutional right under Ohio law “to make and carry out one’s own reproductive decisions,” (4) including the unavoidable possibility that children biologically related to both might be born, whether through use or donation. The court noted the agreement had confusing language, was open to conflicting interpretations, and provided only limited check-the box options, but emphasized that the ex-husband’s opportunity to prevent genetic parenthood ended when he agreed to create the embryos (3). 

The Markiewicz court confronted a different agreement, one that — in the words of the lower court — “kicked the can down the road” by explicitly delegating disposition decisions to a divorce court (5) (6). After applying a balancing of interests test to the parties’ competing reproductive rights and claims to the remaining embryo the wife wanted to use over her husband's objection, the court ruled in favor of the husband (6). 

These cases demonstrate that without clear, enforceable advance agreements, embryo disputes can lead to prohibitively expensive, protracted litigation, where years-long delays can become outcome determinative. In part because state law determines who is or is not a legal parent — so no contract can alone release a former partner from legal parentage of a resulting child, some clinics have reportedly become reluctant to enforce, or even offer, disposition agreements, wanting to avoid being drawn into protracted litigation. 

While such reluctance may be understandable, it can undermine clinics’ duty of care to their patients. Ironically, it may also repeat the same vulnerabilities many clinics faced in IVF’s early years: freezers full of embryos without definitive dispositional instructions. As someone who’s advised multiple retiring IVF providers how to address their inventory of unused frozen embryos, I can assure you that kicking the can down the road didn’t work before, and I wouldn’t advise we return to it today, especially given our highly politicized climate surrounding reproduction and “personhood” for IVF embryos. 

The Future of “Embryo Wars”: What’s Next?

Some solutions exist: while they can’t prevent all disputes, tools are available to assist both patients and clinics reach more reliable and much more equitable outcomes. For over 10 years, the SART Model Forms Committee (full disclosure: I’m a long-time member) has offered model forms that separate informed consent for IVF from legally binding embryo disposition agreements (7). Unlike consent forms, disposition contracts are governed by contract law rather than health law, which limits any right to unilaterally withdraw consent while providing both more durable and reliable clarity for patients and clinics. A well-drafted disposition agreement allows patients to decide and agree prior to IVF what should happen to any remaining embryos in the event of a future separation, divorce or death, subject to any jointly agreed changes. Significantly, SART’s Model Agreement includes a “default provision,” authorizing clinics to discard embryos if none of the chosen options remain available (7). This approach should reduce litigation by providing patients and programs greater certainty and clear guidance for embryo disposition.  

Two Recommendations: 

First, where possible, encourage women (whether single, partnered, facing gonadotropic treatments or not) to freeze eggs, not embryos. This allows women to maintain their reproductive autonomy and control their fertility options without veto power by former partners or litigation averse clinics or protracted litigation. 

Second, legislation can help. Two clear but distinct examples: Arizona (8) authorizes a former partner’s use of embryos regardless of any prior agreement while allowing the other partner to relinquish legal parentage and New York (9) enforces a couple’s original agreement for use while allowing the other party to relinquish legal parentage. The Model 2017 Uniform Parentage Act (10) also offers an option to relinquish legal parentage.

The “Embryo Wars,” (11) as I labeled them over 20 years ago, are still here, but solutions — even if imperfect —exist today that are far better than denying women (or more rarely men) their ability to pursue parenthood, or deferring to clinics’ fears or bottom lines over patient care. Our current challenging times offer both the opportunity and the obligation to address them.

Acknowledgements: The author would like to acknowledge the invaluable assistance of Paulina Machias Ortega, LLM, O’Neill Institute for National and Global Health Law with this article

References

1. Davis v. Davis (TN 1992), https://law.justia.com/cases/tennessee/supreme-court/1992/842-s-w-2d-588-2.html
2. Pregnancy Justice. Unpacking Fetal Personhood (2025), https://www.pregnancyjusticeus.org/wp-content/uploads/2024/09/Fetal-personhood.pdf 
3. E.B. v. R.N. (OH 9th Dis. Ct. Appsl 2024),  https://law.justia.com/cases/ohio/ninth-district-court-of-appeals/2024/30199.html#:~:text=%7B%C2%B67%7DWife%20argues%20in,Paul%2C%2011th%20Dist.&text=Get%20free%20summaries%20of%20new,opinions%20delivered%20to%20your%20inbox
4. Ohio Constitution, Article I, Section 22, The Right to Reproductive Freedom with Protections for Health and Safety, https://codes.ohio.gov/ohio-constitution/section-1.22
5. Markiewicz v. Markiewicz (MI Ct. Apps. 2023), https://www.courts.michigan.gov/4ae2a4/siteassets/case-documents/uploads/opinions/final/coa/20231207_c363720_58_363720.opn.pdf 
6. Markiewicz v. l Markiewicz (2025), Michigan Supreme Court of Justice, https://www.courts.michigan.gov/49d6e1/siteassets/case-documents/uploads/sct/public/orders/166782_83_01.pdf 
7. Ethics Committee of the American Society for Reproductive Medicine (ASMR), Informed consent in assisted reproduction: an Ethics Committee opinion (2023), https://www.asrm.org/globalassets/_asrm/practice-guidance/ethics-opinions/pdf/informed_consent_in_assisted_reproduction.pdf 
8. Arizona Revised Statutes § 25-318.03, https://www.azleg.gov/ars/25/00318-03.htm#:~:text=The%20spouse%20that%20is%20not,be%20a%20parent%20to%20any 
9. New York Consolidated Laws, Family Court Act - FCT § 581-306.https://codes.findlaw.com/ny/family-court-act/fct-sect-581-306/
10. Uniform Parentage Act (2017), Section 706 and 707, https://cdn.factcheck.org/UploadedFiles/UPA-2017_Final-Act_2024jan25.pdf 
11. Crockin, S. The "Embryo" Wars: At the Epicenter of Science, Law, Religion, and Politics (2005), https://www.jstor.org/stable/pdf/25740513.pdf  

---

Photo by Dragon White Munthe on Unsplash

---