Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes


I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to think that 90% of her eggs are already gone – 97% by the time she turns 40 – so I hope she thinks about having kids before it’s too late! She’d be a fun mom. [1]

Readers may remember the uproar alt-right propogandist Stefan Molyneux created when he delivered this bizarre commentary on singer Taylor Swift’s ovaries via Twitter in 2019. The internet was quick to defend Swift, rightly calling the tweet creepy and misogynistic.[2]

It is also, however, scientifically accurate.[3] Though it should go without saying that speculating about women’s reproductive capabilities on Twitter is inappropriate, to say the least, it is true that women have twelve percent of their egg supply left at age thirty, and three percent by the time they turn forty.[4] Age is an aspiring mother’s worst enemy;[5] women are born with all the eggs they will ever have and once they reach menopause, they are out for good.[6]

In vitro fertilization (“IVF”), a fertility treatment, is becoming more popular as women wait longer than ever to start a family.[7] IVF involves extracting eggs from a woman’s uterus, fertilizing them in a laboratory, and inserting the resulting embryos directly back into the uterus. However, women also have the option of freezing their fertilized embryos until they are ready for implantation. Freezing is often chosen by those who are not yet ready for children but want to preserve the option, women who want a safety net before undergoing chemotherapy or something else that will wreak havoc on their reproductive system, and those who have leftover embryos from an IVF cycle that they want to save for potential later use.[8] Though it is becoming increasingly common, IVF is an expensive, invasive, and painful procedure for women, and, as with any surgery, comes with risks.

Unfortunately, while most frozen embryos withstand the test of time,[9] many marriages do not.[10] Upon divorce, a couple has to decide what to do with their frozen embryos, and that question becomes thorny if they cannot agree. Currently, courts use one of three methods to determine what happens to embryos upon divorce when the ex-spouses do not see eye to eye. The Contractual Method strictly follows the fertility clinic’s consent forms the spouses signed before undergoing IVF, ignoring the uniquely emotional and one-sided nature of those forms. The Contemporaneous Mutual Consent Method refuses to award the embryos to either spouse for any purpose unless and until the ex-couple can agree on an outcome, leaving the parties in limbo. The Balancing Method looks at the facts of each individual case and decides which spouse’s rights should prevail. The potential application of three different methods means that outcomes are often unpredictable and arbitrary. Because these cases are relatively novel, most states have no established precedent, and courts have little guidance as to which method they should choose. Family law is a state issue, so there is no federal law or precedent on the subject either.

Nonetheless, trends have emerged in the way courts resolve embryo dispute cases. Most courts undermine or completely ignore the disproportionate burden women face both during and after the IVF process as compared to men. Courts also overwhelmingly rule against the spouse who seeks implantation, which in most cases is the woman. They ignore the fact that, for many of these women, the frozen embryos are their only chance at becoming parents, and instead allow them to be destroyed, donated, or held in storage indefinitely. These trends are not only unfair but also go against both the language and purpose of existing law. This Note proposes a two-step approach to embryo disputes between heterosexual, divorced couples, in cases in which the wife was the egg donor. Embryos should be considered marital property, making their division fall under existing marital property dissolution statutes. Fundamentally, these statutes prescribe a fair split of marital assets, and a fair split of embryos means awarding them to the wife—every single time.

This Note intends to establish three points. First, the existing law in this area is not adequate and often causes more irreversible harm than good. Second, this corner of the law is yet another area where women and their suffering are undermined and overlooked. Finally, although this proposed two-step approach may initially seem somewhat radical, existing law is generally amenable to it already. With nearly 1.5 million frozen embryos currently in storage,[11] legal experts predict that these cases “will continue to pile up in courts”[12]—if nothing else, a realistic, fair, and sustainable solution is needed for efficiency purposes.

Part I explains the process of IVF and how embryo dispute cases are currently decided. It begins by underlining how women face a substantially disproportionate burden throughout the IVF process, but courts have had a tendency to dismiss that disparity when deciding embryo disputes. Part II analyzes embryo disputes in the context of a property framework. It argues that embryos should be considered property—marital property, to be specific—and discusses how states currently define embryos, as well as how statutes govern the division of marital property upon divorce. While states have their own marital dissolution statutes, the crux of each one is that, above all else, the division should be fair. Part III details the thrust of the argument—that due to the disproportionate burdens women face both during and after the IVF process, a fair split, as required by these statutes, will always entail giving the woman possession of the embryos upon divorce, regardless of the facts of each case.

          [1].      Chris Stokel-Walker, Is the Worst Tweet Ever Really the One About Taylor Swift’s Eggs?, Input (Oct. 8, 2021, 10:15 AM) (quoting @StefanMolyneux, Twitter (Dec. 9, 2019, 7:20 PM)),
an-molyneux []. Molyneux has since been banned from Twitter.

          [2].      Isabel Jones, The Internet Is Coming to Taylor Swift’s Defense After an Alt-Right Troll Tweeted About Her Egg Count, InStyle (Dec. 10, 2019, 11:15 AM), [].

          [3].      Actually, it may be one of the only scientifically accurate statements Molyneux has ever made. See Stefan Molyneux, S. Poverty L. Ctr.,
individual/stefan-molyneux [].

          [4].      See W. Hamish B. Wallace & Thomas W. Kelsey, Human Ovarian Reserve from Conception to the Menopause, 5 PLOS One 1, 4 (Jan. 27, 2010).

          [5].      Risk Factors, U.C.S.F., [].

          [6].      Normal Ovarian Function, Rogel Cancer Ctr., [].

          [7].      See Danielle M. Ely & Brady E. Hamilton, Trends in Fertility and Mother’s Age at First Birth Among Rural and Metropolitan Counties: United States 2007–2017, at 1, 5, Nat’l Ctr. for Health Stats (2018).

          [8].      The number of embryos inserted is carefully controlled in an attempt to
avoid multiple births and the associated risks. See In Vitro Fertilization (IVF), Mayo Clinic, [

          [9].      See Pam Belluck, What Fertility Patients Should Know About Egg Freezing,
N.Y. Times (Mar. 13, 2018), [].

        [10].      See Erin McDowell, 13 Surprising Facts About Divorce in the US, Insider
(July 30, 2020, 8:52 AM), [].

        [11].      See Marilynn Marchione, In Limbo: Leftover Embryos Challenge Clinics, Couples, Med. Xpress (Jan. 17, 2019), [].

        [12].      Mark F. Walsh, Arizona Law Determines Fate of Frozen Embryos in Divorce Cases, A.B.A. J. (Dec. 1, 2018, 2:20 AM),
embryos_divorce [].

*.      Senior Submissions Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Philosophy-Neuroscience-Psychology 2016, Washington University in St. Louis. Thank you to Professor Scott Altman for his invaluable guidance throughout the Note-writing process and to the Southern California Law Review staff and editors for all of their hard work. Above all, thank you to my family for their love and support and to my friends for their outlines and comic relief.

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