Conundrums with penumbras: the right to privacy encompasses non-gamete providers who create preembryos with the intent to become parents.

Abstract

To date, five state high courts have resolved disputes over frozen preembryos. These disputes arose during divorce proceedings between couples who had previously used assisted reproduction and cryopreserved excess preembryos. In each case, one spouse wished to have the preembryos destroyed, while the other wanted to be able to use or donate them in the future. The parties in these cases invoked the constitutional right to privacy to argue for dispositional control over the preembryos; two of the five cases were resolved by relying on this right. The constitutional right to privacy protects intimate decisions involving procreation, marriage, and family life. However, when couples use donated sperm or ova to create preembryos, a unique circumstance arises: one spouse--the gamete provider--is genetically related to the preembryos and the other is not. If courts resolve frozen preembryo disputes that involve non-gamete providers based on the constitutional right to privacy, they should find that the constitutional right to privacy encompasses the interests of both gamete and non-gamete providers. Individuals who create preembryos with the intent to become a parent have made an intimate decision involving procreation, marriage, and family life that falls squarely within the the right to privacy. In such cases, the couple together made the decision to create a family through the use of assisted reproduction, and the preembryos would not exist but for that joint decision. Therefore, gamete and non-gamete providers should be afforded equal constitutional protection in disputes over frozen preembryos.