Beyond Balancing: Rethinking the Law of Embryo Disposition

68 Am. U. L. Rev. 515 (2018).

*Stearns Weaver Miller Professor, Florida State University College of Law. The Author would like to thank Katherine Baker, Linda Fentiman, Deborah Forman, Melanie Jacobs, Kevin Maillard, Seema Mohapatra, Mark Spottswood, and Hannah Wiseman for agreeing to help with earlier versions of this piece.

Actress Sofia Vergara became the center of a new round of conflict about the disposition of embryos created using assisted reproductive technologies (ART): the conflict about the difference that abortion jurisprudence should make to case law on ART. This Article argues that the history of abortion jurisprudence sheds light on the problems with the leading approach to embryo-disposition cases like Vergara’s.

In many instances, courts first look for a clear, binding agreement and look to a balancing analysis if no such agreement exists. As this Article shows, this is not the first time that courts have applied a balancing analysis to deal with clashing rights to seek and avoid genetic parenthood. The Article explores the history of two balancing approaches that have played a pivotal role in abortion law. These approaches have led to inconsistent results and cater to the prejudices of judges who are asked to weigh the relative merits of individual parties’ views on reproduction.

This Article recommends that states adopt legislation detailing the requirements of an enforceable embryo disposition similar to the Uniform Premarital and Marital Agreements Act (UPMAA). In the embryo-disposition context, states should require parties to disclose legal rights and responsibilities rather than only finances. These disclosures should cover the preservation, implantation, or destruction of the embryos and the financial and legal responsibility for any resulting child. States should enforce an embryo-disposition agreement if it is voluntary, if the parties had counsel or the opportunity to access counsel, and if the parties had a full disclosure of the constitutional and common law rights implicated by the agreement.

IIntroduction

Sofia Vergara’s legal troubles have revitalized interest in the law surrounding embryo disposition.¹ Vergara’s ex-fiancé, Nick Loeb, brought national attention to the issue in 2015 when he filed a lawsuit to protect and bring to term, two female embryos created by Loeb and Vergara during their relationship.² The couple had used in vitro fertilization (IVF) in the hope of later having a child together.³ The pair twice attempted IVF, and as is often the case, created more embryos than would be implanted at a specific time.⁴ Couples like Loeb and Vergara often sign consent forms addressing disputes between patients and fertility clinics, but Loeb and Vergara had no agreement spelling out what would happen if they broke up.⁵ In 2014, their relationship ended; Loeb, seeking to use the embryos, filed a lawsuit to obtain custody of two embryos called Emma and Isabella.⁶

Because of Vergara’s celebrity, Loeb quickly found a national audience. He penned a New York Times op-ed on what he saw as “fathers’ rights.”⁷ Notably, Loeb also connected his case to the constitutional law governing abortion.⁸ He wrote, “[a] woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects?”⁹

Loeb’s comment reflects a larger trend in cases involving the disposition of embryos created during IVF: the increasing injection of the abortion conflict into the law and politics of assisted reproductive technologies (ART).¹⁰ Pro-life organizations have formed groups committed to the legal defense or adoption of embryos.¹¹ Groups like the National Right to Life Committee (NRLC), which have previously avoided the issue, have spoken out more forcefully against those seeking to discard embryos.¹²

This Article argues that the history of abortion doctrine sheds light on the problems with the leading approach to embryo-disposition cases like Vergara and Loeb’s. In many instances, courts first look for a clear, binding agreement between the parties and resort to a balancing analysis if no such agreement exists.¹³ As this Article shows, this is not the first time that courts have applied a balancing analysis to deal with clashing rights to seek and avoid genetic parenthood. This Article explores the history of two balancing approaches that played a pivotal role in abortion law. First, in the late 1980s and early 1990s, pro-lifers, convinced that Roe v. Wade¹⁴ would soon be overruled, stressed the need for courts to balance a woman’s reasons for seeking an abortion against a man’s interest in becoming a father.¹⁵ Second, in the aftermath of the Court’s decision in Whole Woman’s Health v. Hellerstedt,¹⁶ the lower courts adopted a balancing approach when determining whether regulations unduly burden women’s rights to choose abortion.¹⁷

The historical application of these balancing tests illuminates serious problems attached to the balancing of competing interests in the context of ART. First, these tests have led to inconsistent results. Second, they cater to the prejudices of judges who are asked to weigh the relative merits of individual parties’ views on reproduction. As long as a balancing approach applies to embryo disputes, couples will be exposed to humiliating, open-court discussions of their private lives and judicial evaluation of the merits of their opinions on parenthood.¹⁸ Those using ART will also lack badly needed guidance about what will happen in the event of a dispute.

Courts gravitate toward balancing tests largely because of problems with any potential contract between the parties or the absence of any agreement whatsoever.¹⁹ But, instead of abandoning a contract approach, lawmakers should do more to ensure that couples’ agreements on embryo disposition are meaningful and informed. This Article recommends that states adopt legislation detailing the requirements of an enforceable embryo disposition agreement similar to the Uniform Premarital and Marital Agreements Act (UPMAA).²⁰ The parallels between prenuptial agreements and embryo-disposition agreements are significant. The law on embryo-disposition contracts should reflect both the similarities and differences between the two types of bargain. In the embryo-disposition context, states should require parties to disclose legal rights and responsibilities, rather than only finances. These disclosures should cover the preservation, implantation, and destruction of the embryos and the financial and legal responsibility for any resulting child. Concerns about substantive unconscionability, most of which touch on financial unfairness to one party in the prenuptial context,²¹are out of place when it comes to the disposition of embryos. Indeed, asking the courts to weigh in on substantive unconscionability could create the same problems as balancing tests by inviting judges to dissect the parties’ motives and personal lives.²² States should determine that an embryo-disposition agreement is enforceable if it is voluntary, if the parties had counsel or had the opportunity to access counsel, and if the parties had a full disclosure of the constitutional and common-law rights implicated by the agreement.

This Article proceeds in four parts. Part I canvasses the current law on embryo disposition, focusing on legal and political trends in recent years that have knit ART and abortion law more closely together. Part II puts these doctrinal developments in historical context, by studying past efforts to use balancing to resolve rights to seek and avoid parenthood. These cases provide a fascinating parallel to contemporary embryo-disposition suits: at the time, when many believed that the Supreme Court would overrule Roe very soon, courts could freely balance competing values and commitments to procreation.²³ As Part II shows, “fathers’ rights” litigation offered courts several reasons for avoiding a balancing analyses that reach beyond abortion case law.²⁴ Part III begins to develop an alternative approach by studying the similarities between prenuptial and embryo-disposition agreements.²⁵ Part III then proposes and defends a model approach.²⁶

I. The New Law of Embryo Disposition

Embryo disposition has become one of the most widely-discussed issues involving reproductive health. Cases like Vergara’s frequently make front-page news.²⁷ In recent years, organizations like Embryo Defense have formed to fund litigation and public education on the rights some assign to pre-embryos created during IVF.²⁸ Other organizations have specialized in embryo adoption.²⁹ The Snowflakes Embryo Adoption Program, founded in 1998, facilitated the first embryo adoption³⁰ and more recently, the United States Department of Health and Human Services’ Office of Population Affairs has provided grants to increase awareness of embryo adoption as an option.³¹

From the outset, the relationship between embryo disposition and abortion was complex. In the mid-1980s, when the Vatican took a strong stand against IVF and other assisted reproductive technologies, most anti-abortion and social-conservative groups stayed on the sidelines.³² While never focusing on IVF, pro-life groups have consistently opposed selective reduction,³³ a procedure in which a doctor implants more embryos than are expected to be born and then aborts some fetuses to maximize the chances that others will come to term.³⁴ Abortion opponents and some disability-rights groups have also opposed prenatal genetic diagnosis involved in ART, believing that it leads families to end pregnancies.³⁵ While judges have created rules that apply only to assisted reproduction, abortion law still casts a shadow over ART jurisprudence.³⁶

Courts could choose to apply abortion doctrine to resolve ART disputes, as Professor Judith Daar has recommended.³⁷ In fact, on some matters, abortion doctrine has strongly influenced embryo-disposition cases. For example, abortion jurisprudence encouraged courts to view an embryo as neither a person nor a piece of property.³⁸ For the most part, however, courts have used ART cases as an opportunity to rethink the rights at stake in assisted reproduction and to create a better approach to clashing views about parenthood.³⁹

Courts have created three main approaches to embryo-disposition cases: a balancing analysis⁴⁰; a contract-based approach;⁴¹ and the mutual, contemporaneous agreement approach.⁴² This Part surveys each of these approaches and the arguments often used for and against them. This survey shows that notwithstanding criticisms of a balancing analysis, courts continue to adopt similar approaches because the parties lack a convincing contract and because the gravity of the interests involved, both constitutional and otherwise.

A. Davis and the Balancing Approach

Davis v. Davis,⁴³ the foundational case articulating a balancing approach, stemmed from the divorce of Mary Sue and Junior Davis.⁴⁴ The Davises previously pursued IVF after struggling to get pregnant.⁴⁵ Optimistic about the outcome, Mary Sue and Junior did not discuss or agree on the disposition of excess pre-embryos.⁴⁶ After one attempt at implantation failed, Junior filed for divorce,⁴⁷ and Mary Sue requested custody of the pre-embryos.⁴⁸ The trial court found that the pre-embryos were children and awarded custody to Mary Sue.⁴⁹ The Tennessee Court of Appeals reversed, holding that abortion doctrine—particularly the holding in Roe that a fetus was not a person—contradicted the trial court’s ruling.⁵⁰ Mary Sue appealed this decision to the Tennessee Supreme Court.⁵¹

But what is a pre-embryo? To answer this question, the court first examined state and federal law and found little support for the idea that an embryo was a person.⁵² However, the Tennessee Supreme Court also found it unconvincing to describe an embryo as property.⁵³ Relying on ethical guidance from the American Fertility Society, the court identified a middle-ground position: an embryo deserves special respect because of its “potential to become a person,” but it should not be treated the same as an actual person.⁵⁴ In resolving embryo-disposition cases, the court articulated a preference for relying on contracts between the parties.⁵⁵ This preference reflected “the proposition that the progenitors, having provided the gametic material giving rise to the pre-embryos, retain decision making authority as to their disposition.”⁵⁶

But there was no clear agreement between Junior and Mary Sue, and the court refused to read the couple’s very willingness to do IVF as an implied contract.⁵⁷ The court instead concluded that it had no choice but to balance the parties’ interests in seeking or avoiding procreation.⁵⁸ Citing cases on contraception, abortion, and parental rights and responsibilities, the court concluded that “the right of procreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation.”⁵⁹ In the IVF context, the rights at issue differ from those that apply in the abortion context.⁶⁰ In abortion jurisprudence, because only women (and trans-men) can become pregnant, concerns about women’s bodily integrity justified more decision-making authority.⁶¹ No similar physical limitations governed IVF.⁶² In the context of ART, as the court in Davis reasoned, a court should look closely at each party’s reasons for seeking and avoiding genetic parenthood.⁶³

The court then applied this approach to the facts of Davis. Having grown up in a home for abandoned children, Junior strongly opposed raising a child in a home with only one parent.⁶⁴ On the other hand, Mary Sue wanted to donate the embryos to another couple to ensure that the difficulties she had endured during the IVF process were not in vain.⁶⁵ The Davis court reasoned that Junior’s interest in avoiding parenthood outweighed Mary Sue’s desire to give the embryos to an infertile couple.⁶⁶ Had Mary Sue wished to use the embryos herself, the Davis court would have allowed her to do so over Junior’s objection only if doing so was her only way to become a parent.⁶⁷ Since Mary Sue could adopt, the court reasoned that her interest in seeking reproduction was less significant than Junior’s interest in avoiding it.⁶⁸

The Davis court, in some ways, seemed to reach a satisfactory outcome. Since few couples entered into meaningful written agreements before availing themselves of IVF, a balancing analysis seemed to be an important safety net in embryo disputes. Moreover, since both the right to procreate and to avoid procreation were arguably at stake in IVF cases, a balancing approach allowed courts to give each interest proper respect all the while paying attention to the specifics of each claimant’s circumstances.⁶⁹ Indeed, Davis’s approach did attract adherents, as illustrated by the New York Court of Appeals’s decision in Kass v. Kass.⁷⁰

B. Kass and the Contract-Based Approach

While Davis praised a contract-based approach, Kass became the first to apply it.⁷¹ Kass also involved a married couple who had struggled to conceive.⁷² Maureen and Steve Kass enrolled in an IVF program at John T. Mather Memorial Hospital.⁷³ To participate in the program, the couple had to sign four forms.⁷⁴ In an addendum to one form, the two elected to have the excess eggs inseminated and cryopreserved for possible future use by the couple.⁷⁵ Maureen and Steve completed an additional consent form discussing what would happen in the event of the couple’s death or “other unforeseen circumstances,” and decided to allow the IVF program to use the remaining embryos for research.⁷⁶ The Kasses tried IVF using Maureen’s sister as a surrogate, but the procedure failed, and the two subsequently filed for divorce.⁷⁷ Maureen sought sole custody of the embryos, which she planned to have implanted.⁷⁸

The trial court looked to abortion jurisprudence to evaluate the Kasses’ dispute.⁷⁹ The court reasoned that just as a pregnant woman had sole decision-making authority in the context of ending a pregnancy, an infertile woman should determine what happened to fertilized embryos.⁸⁰ A divided Appellate Division reversed.⁸¹ The New York Court of Appeals reiterated the value of written contracts in embryo-disposition matters.⁸² The court explained that prior written agreements “both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.”⁸³

The court then set out an approach to the interpretation of embryo-disposition contracts: judges should discern the parties’ “overall intention” and then construe a contract accordingly.⁸⁴ Notwithstanding some ambiguity in the contract, the court concluded that its overall intent was for the parties to make a joint decision about the disposition of the embryos and to make the embryos available for research in the event of divorce, as well as the specifically enumerated “unforeseen circumstances.”⁸⁵

The Kass approach appealed to many courts tackling embryo disposition as a matter of first impression.⁸⁶ It seemed intuitively right to allow the parties to reach their own decision about embryo disposition rather than asking the court to balance the competing interests and reach an outcome.⁸⁷ Many couples entered into an agreement with fertility clinics before beginning IVF, and these documents provided some guidance for judges.⁸⁸ Still, due to the dissatisfaction with Kass, other courts continued to search for an alternative approach.⁸⁹

C. Witten and Mutual, Contemporaneous Consent

The Iowa Supreme Court’s decision in In re Marriage of Witten⁹⁰ reflects discontent with the contract-centered approaches articulated in both Davis and Kass.⁹¹ Trip and Tamera Witten had unsuccessfully tried to procreate using IVF, and after Trip filed for divorce, Tamara sought custody of the embryos.⁹² The Wittens had executed an agreement with the University of Nebraska Medical Center, which provided that the embryos would not be released for use without the consent of both parties.⁹³ The only exception covered the death of Trip and/or Tamara.⁹⁴ The trial court relied on this agreement in determining what should happen to the embryos, and held that neither side could transfer or otherwise dispose of the embryos without the other’s written consent.⁹⁵ The Iowa Supreme Court rejected this approach.⁹⁶

The court concluded that the parties’ agreement was broad enough to cover the parties’ divorce,⁹⁷ but avoided the contract-based approach for policy reasons.⁹⁸ Given the importance of reproductive decisions, the court reasoned that individuals had the right to make decisions that align with their present-day values.⁹⁹ Further, the court stated that individuals would perform particularly poorly when predicting their decisions about major, distant events like parenthood.¹⁰⁰ The Witten court also criticized a pure balancing test and suggested that, in applying such a test, courts would too often substitute their views for those of the parties.¹⁰¹

As an alternative, the court adopted a mutual, contemporaneous consent approach. Under this approach, no embryo will be used, destroyed, or donated without the consent of both parties who created the embryo.¹⁰² If the couple could not reach an agreement, the status quo of preservation would prevail regardless of any prior agreement.¹⁰³

In Witten, the court prioritized the parties’ present-day desire (or lack thereof) to seek out parenthood. In principle, allowing parties to avoid unwanted parenthood is just and sensible, and mutual, contemporaneous consent provides a mechanism whereby parties can resolve embryo disputes amongst themselves.¹⁰⁴ In practice, as a dispute resolution mechanism, mutual, contemporaneous consent seems far less than pragmatic. By the time the parties have dug in and embraced litigation, it is quite unlikely that anyone will reach a present-day consensus. Partly for this reason, balancing analyses have become increasingly significant.

D. The Prominence of Balancing

Most courts that have heard embryo-disposition disputes have adopted a version of the Davis and Kass approaches, applying a valid contract if possible and balancing the parties’ interests if no viable agreement was in place.¹⁰⁵ Notwithstanding a stated preference for a contract-based approach, many states have had to turn to a balancing test.¹⁰⁶ When an agreement does exist, courts have hesitated to bind parties to them, especially since many of the forms do not specifically contemplate divorce.¹⁰⁷ Given potential problems with clinic-consent forms, the frequency of balancing might not seem to be a bad thing. The informed consent documents that parties sign at clinics are often long and complex, combining medical and legal matters.¹⁰⁸ Research suggests that couples frequently change their minds after starting treatment.¹⁰⁹ The circumstances surrounding the signing of an informed consent form suggest that at least some couples sign papers without even reading the contracts.¹¹⁰

Mutual, contemporaneous consent, while attractive in theory, almost inevitably favors the party who is happy with the status quo. Some couples will certainly be able to agree on the disposition of embryos after splitting up. But for many, there will never be any mutual, contemporaneous consent. In these scenarios, parties avoiding procreation will systematically do better than those seeking procreation.¹¹¹ While this may be a desirable result, the mutual, contemporaneous consent approach does not force courts to grapple with whether one of the two related procreative rights should outweigh the other.¹¹²

Is a balancing test the lesser of all evils? Part II addresses this question by studying the history of a similar balancing approach in the abortion context. Part II first examines pro-life efforts to convince the courts to adopt a balancing test when biological fathers and mothers disagree about abortion.¹¹³ Then Part II explores the application of a more recent, but less closely related, balancing approach authorized by Whole Woman’s Health.¹¹⁴ This history suggests that a balancing approach to ART is far more problematic than we might have imagined.

I. The Problems with Balancing

Both pro-life and abortion-rights activists have relied on balancing analyses in the past.¹¹⁵ This Part explores cases that illuminate the problems with adopting a similar approach in the context of ART. First, this Part explores how both pro-life and pro-choice activists have relied on balancing analyses in the past.¹¹⁶ Pro-life activists urged courts to use a balancing test when a potential father objected to an abortion.¹¹⁷ Pro-choice activists pitted a woman’s rights to choose against a man’s right to parent and urged courts to balance each potential parent’s interest in seeking or avoiding parenthood.¹¹⁸ Next, this Part examines the balancing test courts use to determine the constitutionality of state laws regulating a woman’s access to abortion.¹¹⁹ In Whole Woman’s Health, the Supreme Court balanced the woman’s interest in receiving an abortion against any benefits of the regulation.¹²⁰ By providing in depth case summaries, this Part demonstrates that each approach presents its own unique consequences that counsel against adopting similar approaches in the context of ART.

A. Balancing Men’s Rights in the Abortion Context

In Roe, the Supreme Court held that women have a right to privacy, and this right includes the right to obtain an abortion.¹²¹ To determine whether abortion regulations violate this fundamental right, the Court balanced the woman’s privacy interest against the state’s interest in regulating abortion.¹²² Organized opposition to abortion reaches back to the 1930s and 1940s when Catholics linked anti-contraception and anti-abortion sentiment.¹²³ These organizations reframed their opposition to abortion under the Declaration of Independence and the Equal Protection Clause of the Fourteenth Amendment. Under this approach, pro-life organizations argued that both the born and unborn were equally entitled to legal protection.¹²⁴

After Roe, pro-lifers favored a constitutional amendment that would outlaw all abortions.¹²⁵ However, from the beginning, abortion foes also looked to pass laws that would limit access to abortion and favorably shape public opinion.¹²⁶ Statutes requiring women to obtain their husbands’ consent seemed to satisfy these criteria.¹²⁷

The Supreme Court addressed the constitutionality of a model spousal-consent statute in Planned Parenthood of Central Missouri v. Danforth.¹²⁸ In Roe, the Court specifically reserved the question of whether a state could require the consent of a woman’s husband,¹²⁹ but Danforth struck down such a requirement.¹³⁰ The Court reasoned that if the government could not constitutionally veto a woman’s abortion decision in the first trimester, the state could not delegate that power to anyone else.¹³¹ To recognize a right for men to consent would, as the Danforth Court suggested, establish that abortion was not a full-fledged constitutional right.¹³² While the Court suggested that women often did, and should, consult with their husbands, it saw the legal requirements quite differently.¹³³ “The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail,” the Danforth Court reasoned.¹³⁴ The Court recognized that because pregnancy affects a woman more seriously, “the balance weighs in her favor.”¹³⁵

Despite the outcome of Danforth, pro-life groups continued looking for ways to give men rights in the abortion context.¹³⁶ Because Missouri’s law awarded men an outright veto, pro-lifers hoped that a narrower law, or a spousal-notification statute,¹³⁷ would be constitutional.¹³⁸ Cases on the subject seemed to multiply rapidly, with men from Tennessee, Maryland, and Connecticut trying to stop their wives from having abortions.¹³⁹ Seven states passed spousal-notification laws between 1976 and 1989.¹⁴⁰ Polls consistently suggested that a slight majority of Americans favored spousal-notification requirements, and some courts upheld them.¹⁴¹

As some activists urged state legislatures to enact a spousal-involvement statutes, two of the pro-life movement’s leading lawyers, James Bopp Jr. (Bopp) and Richard Coleson (Coleson), promoted a case-by-case balancing approach.¹⁴² Bopp and Coleson first advocated for a balancing approach in Smith v. Doe,¹⁴³ in which John Smith (a pseudonym), a twenty-four-year-old delivery truck driver from Vigo County, Indiana, sought to stop his eighteen-year-old girlfriend from terminating her pregnancy.¹⁴⁴ The two attorneys emphasized that Smith’s interests in protecting and acting as a father to his unborn child outweighed any countervailing right that Jane Doe could identify.¹⁴⁵ “We think the courts have to decide how the rights of the father should be balanced against the rights of the mother,” Bopp explained.¹⁴⁶ Bopp and Coleson claimed that a father’s interest in unborn children outweighed any negative consequences a woman might face because of an unplanned pregnancy (such as the loss of opportunities for further education or a career, the stigma of unwed motherhood, or the financial burden of raising a child, and so on).¹⁴⁷

Bopp and Coleson certainly wanted to help John Smith, but they thought that a balancing test could undermine abortion rights more broadly. First, if a court looked at case-specific factors, like a woman’s interest in education or financial security, the availability of an abortion right would depend entirely on a woman’s ability to tell a story that was emotionally compelling to a particular judge.¹⁴⁸ Judges’ prejudices or embrace of sex stereotypes would limit any applicable abortion right.¹⁴⁹ Moreover, if a court suggested that men’s interests in parenthood outweighed at least some women’s abortion rights, then abortion rights would be far weaker.¹⁵⁰ Second, the lawyers believed that they could package a balancing test as a modest measure, or as a step that a court could take without officially rejecting a constitutional right to abortion.¹⁵¹

Additionally, Bopp and Coleson understood how going to court could deter women from exercising their abortion rights. Jane Doe’s experience in Smith v. Doe reinforced their conclusions. Noting that she would be forced to testify about her sexual history and moral positions, Jane Doe refused to testify.¹⁵² Ultimately, Judge Robert Howard Brown, of the Vigo Circuit Court, sided with Bopp and Coleson and issued an order blocking her from terminating her pregnancy.¹⁵³ Notwithstanding the court’s conclusion that Roe recognized a fundamental abortion right for women, it found that Jane Doe did not have sufficient reasons for terminating her pregnancy.¹⁵⁴ The court stated that John Smith would suffer considerable emotional harm if his child died, while Jane Doe would suffer considerably less.¹⁵⁵ She would not suffer stigma from unwed motherhood and would not face “a distressful life or future.”¹⁵⁶ The only trauma she would face if the pregnancy came to term involved her desire “to look nice in a bathing suit this summer, her desire not to be pregnant in the summertime, and her desire not to share the petitioner with the baby.”¹⁵⁷

In opposing a subsequent petition to the United States Supreme Court, Jane Doe outlined some of the costs of a balancing approach.¹⁵⁸ Jane Doe expressed the humiliation she experienced after her physician was subpoenaed, attorneys debated her mental health, physical well-being, and sexual history, and her acquaintances testified in open court about her sex life.¹⁵⁹

While seeking expedited review from the Indiana Supreme Court, Jane Doe ignored the judge’s order and terminated her pregnancy.¹⁶⁰ Bopp and Coleson still asked the United States Supreme Court to review the case,¹⁶¹ and both parties’ filings revealed deeply different views about the promise of a balancing test in the abortion context.¹⁶² Working with attorneys from Indiana and the national ACLU Reproductive Freedom Project, Jane Doe first argued that balancing presented the same problems as state-mandated spousal involvement.¹⁶³ “Whether imposed by court order on a case-by-case basis or by state statute, the deprivation of a woman’s constitutional right is equally complete,” Jane Doe contended.¹⁶⁴ Jane Doe reiterated that “[e]very adult woman has the right to decide to have an abortion and to effectuate that decision without government interference, regardless of her very personal reasons or having to reveal those reasons.”¹⁶⁵ Forcing her to do otherwise, Jane Doe concluded, suggested that she had no constitutional abortion right.¹⁶⁶

Further, Jane Doe suggested that balancing in the reproductive context was doomed from the start.¹⁶⁷ Given the range of religious, medical, and personal factors in play in decisions about reproduction, judges applying a balancing test could too easily impose their “purely subjective observations and personal beliefs.”¹⁶⁸ If the Court disagreed, courts would likely be flooded with “countless highly personal disputes involving abortion, sterilization, and the use of birth control, between spouses and lovers.”¹⁶⁹ The very use of balancing might deter some women from exercising their reproductive rights. Forcing a woman to publicly defend her private decision to terminate her pregnancy might tax her abortion right into non-existence.¹⁷⁰

Bopp and Coleson’s petition for writ of certiorari made clear that the adoption of a balancing test was intended to allow pro-lifers to chip away at abortion rights.¹⁷¹ First, Bopp and Coleson argued that even if the Constitution recognized an abortion right, it was not a strong one—the interest could be overcome by a significant number of government interests.¹⁷² Indeed, Bopp and Coleson contended that “a state’s interest in protecting the interests of fathers in their unborn children rise[s] to the level of being compelling.”¹⁷³ As Bopp and Coleson framed it, abortion was not a fundamental right for women; women had a right to override fathers’ decisions only if they had compelling enough reasons to do so.¹⁷⁴ The lawyers’ petition for writ of certiorari mentioned the following example: if because of reproductive capacity, a man stood to lose his last chance of having a genetic child, a woman should lose out if she had “relatively weaker reasons” for choosing abortion, such as wanting a boy rather than a girl.¹⁷⁵ An individualized balancing analysis meant that women had to deserve their abortion rights.¹⁷⁶ Women who acted for the wrong reasons would have few rights at all.¹⁷⁷

Bopp and Coleson’s analysis of Smith’s case offered additional insight into how a balancing test would apply. Bopp and Coleson emphasized the intensity of a father’s interest in parenthood and willingness to accept custody and complete financial responsibility for having a child.¹⁷⁸ The petition for writ of certiorari also described Jane Doe’s reasons for choosing abortion as frivolous, such as an interest in keeping herself free from responsibilities that would compromise her ability to find a future romantic partner.¹⁷⁹

The Supreme Court declined to take the case,¹⁸⁰ but it was just the first of many in the late 1980s that pro-lifers would bring using a balancing test to erode women’s abortion rights.¹⁸¹ Abortion-rights attorneys responded by arguing that cases like Danforth had settled the matter.¹⁸² But despite any similarities between Danforth and the more recent cases, those on both sides recognized that the make-up of the Court had changed, and the outcome could be quite different with President Reagan nominees on the bench.¹⁸³

While Bopp and Coleson saw a balancing approach as an opening to attack legal abortion immediately, the Court was not yet ready to overrule Roe. In 1986, the Supreme Court issued its most recent abortion decision, Thornburgh v. American College of Obstetricians & Gynecologists.¹⁸⁴ In Thornburgh, the Court struck down each part of a challenged Pennsylvania statute and rebuked those who did not accept that Roe was the law.¹⁸⁵ However, four justices dissented, including Chief Justice Warren Burger, one of the justices who had voted with the majority in Roe.¹⁸⁶ Several of the dissenters explicitly called for the reexamination of Roe.¹⁸⁷

The 1987 retirement of Lewis Powell made the overruling of Roe more likely.¹⁸⁸ Ronald Reagan quickly nominated Robert Bork, a judge on the United States Court of Appeals for the District of Columbia Circuit, to replace Powell.¹⁸⁹ Bork’s nomination became one of the most polarizing nominations in American history.¹⁹⁰ A group of disparate, left-leaning organizations formed the Block Bork Coalition to doom the judge’s nomination.¹⁹¹ Bork had been an outspoken critic of Roe and other substantive due process decisions, and had suggested that they represented particularly egregious examples of judicial activism.¹⁹²

In early October, Bork’s bid for the Court failed in committee.¹⁹³ Although many expected the nominee to concede defeat, both Bork and President Reagan called for a full Senate debate.¹⁹⁴ Given that Democrats controlled the Senate, the outcome of the final vote did not come as a surprise: Bork’s nomination failed by a vote of 42–58.¹⁹⁵ Bork’s hearings started a new era of Supreme Court nominations; one marked by increasing partisanship and high-stakes interest group spending.¹⁹⁶

Reagan’s next nominee, Anthony Kennedy, a judge from the United States Court of Appeals for the Ninth Circuit, had no trouble in Congress.¹⁹⁷ By February 1988, the Senate voted unanimously to confirm him.¹⁹⁸ NRLC leaders obviously saw Kennedy, and other Supreme Court nominees, as the linchpin of a bolder attack on Roe.¹⁹⁹ “Justice Sandra Day O’Connor has described Roe v. Wade as being on a collision course with itself,” wrote NRLC President John Willke.²⁰⁰ “Justices Antonin Scalia and Anthony Kennedy have not yet voted directly on a law restricting abortion, . . . but [i]t is hoped that all three will vote to overrule Roe v. Wade if and when the time comes.”²⁰¹ As important to their attack on Roe, George H.W. Bush, Reagan’s vice president, won the 1988 election and pledged to continue nominating judges like Bork.²⁰²

The stakes of a balancing approach became clearer when Bopp and Coleson took the case of Erin Andrew Conn.²⁰³ Conn and his wife, Jennifer, had a five-month old daughter, Crystal, but their marriage was failing.²⁰⁴ Nineteen-year-old Jennifer, who had scheduled an abortion to end her six-week pregnancy, told Erin that she was filing for divorce.²⁰⁵ Bopp and Coleson brought suit, as they had in similar fathers’ rights cases, to ask for an injunction to stop Jennifer from ending her pregnancy.²⁰⁶

In Conn v. Conn,²⁰⁷ Bopp and Coleson offered more insight into what a balancing test would require. The two suggested that such a test was appropriate in the abortion context because both genetic mothers and fathers had constitutional interests at stake in the dispute.²⁰⁸ Nonetheless, the two favored a balancing test because it suggested that whatever interest women had in abortion, it was not a fundamental right.²⁰⁹ “[T]his Court has demonstrated that a compelling interest is not always necessary when rights and interests of the parties are at stake,” Bopp and Coleson wrote.²¹⁰ The two pointed to the Supreme Court’s adoption of balancing in parental-involvement cases as evidence that abortion was not a right in any traditional sense.²¹¹ The Court had created “a scheme grounded in individual judicial determination on a case by case basis of whether a minor’s abortion should be authorized or precluded.”²¹² Bopp and Coleson believed that by adopting a balancing test, the trial court signaled its willingness to retreat from protecting abortion rights.²¹³

The Supreme Court declined to hear Conn, but the push for men’s rights in abortion continued.²¹⁴ In 1989, the Supreme Court decided Webster v. Reproductive Health Services.²¹⁵ In Webster, the Court upheld a Missouri anti-abortion law, and a plurality of the Justices suggested that Roe’s trimester framework was no longer tenable.²¹⁶ In the aftermath, pro-lifers looked for a vehicle for ending legal abortion, and balancing approaches took a back seat to more aggressive alternatives.²¹⁷ NRLC promoted a model law which claimed to ban abortion as a form of “birth control”; the law allowed abortions only in cases of rape, incest, or a threat to a woman’s life or health.²¹⁸

In 1992, the Court again weighed men’s rights in Planned Parenthood of Southeastern Pennsylvania v. Casey.²¹⁹ Casey involved a multi-part Pennsylvania law that included a spousal-notification requirement.²²⁰ Pennsylvania made it illegal for a doctor to perform an abortion without first receiving a signed written statement from a woman that she had notified her husband about the abortion.²²¹ A woman further had the option of furnishing an alternative written statement, indicating:

that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.²²²

The Casey Court famously refused to overrule Roe.²²³ The Court did, however, upend the doctrinal framework that applied to abortion law.²²⁴ Casey reasoned that because the government’s interest in protecting fetal life applied throughout pregnancy, Roe’s trimester framework was fatally flawed.²²⁵ As an alternative, the Court adopted the undue burden standard, which asks whether a law has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.²²⁶

In Casey, the Court applied the undue burden test and struck down Pennsylvania’s spousal-notification law.²²⁷ Canvassing scholarly research and studying the trial court’s findings of fact, the Court reasoned that most women who refused to tell their husbands did so for valid reasons, including the threat of domestic violence.²²⁸ Furthermore, the Court did not think that the exceptions written into the Pennsylvania statute made a difference.²²⁹ As the Court saw it, domestic violence victims would often be deterred from seeking an abortion by the notification requirement.²³⁰ In cases of sexual assault, the exception seemed especially useless: many victims of sexual assault would fail to meet reporting requirements, especially if their husbands were notified that an investigation was taking place.²³¹ “Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution,” the Court explained.²³² “Women do not lose their constitutionally protected liberty when they marry.”²³³

The Court’s rejection of the spousal-notification law was especially striking given the Justices’ willingness to uphold every other part of the disputed law.²³⁴ For example, the Court upheld the statute’s medical emergency provision, which did not allow for abortion for certain serious health conditions, including “eclampsia, inevitable abortion, and premature ruptured membrane.”²³⁵ Casey certainly did not close the door on new abortion restrictions,²³⁶ but it seemed unwise for abortion foes to focus on men’s rights or the kind of balancing approach that Bopp and Coleson had used.

Just the same, the use of balancing tests in the abortion context tell a cautionary tale. Bopp and Coleson gravitated toward a balancing test because they believed that such an approach implied that women did not have a fundamental abortion right.²³⁷ Similarly, in cases involving ART, where important constitutional interests are likely in play, a balancing approach seems to be in tension with the possible future recognition of any procreative right. As Bopp and Coleson recognized, balancing analyses implied that a number of interests could outweigh whatever liberty women have.²³⁸

Courts are still grappling with how the Constitution applies in assisted-reproduction cases. Case law on the subject sends contradictory messages about whether there is a fundamental right to seek or avoid procreation.²³⁹ By focusing so much on the facts of individual cases, courts have not consistently explained the nature of either right or the relationship between them.²⁴⁰ Because of these unpredictable results, it is difficult for parties using ART to know ahead of time how an embryo-disposition suit will end. By finding that other interests outweigh an interest in seeking or avoiding procreation, courts can also suggest that there is no right to seek or avoid genetic parenthood. Judges should not weigh in on these crucial constitutional questions without more careful consideration and briefing of the issues.

As important, Bopp and Coleson preferred a balancing test because it encouraged judges to zero in on individual’s reasons for seeking or avoiding parenthood. By sifting through the most intimate details of people’s lives, judges would certainly reach unpredictable results, and the door might remain open for decisions forcing a woman to carry a pregnancy to term. The same invasiveness and prejudice can easily characterize balancing in the context of ART.

B. Whole Woman’s Health and Balancing

More than two decades after Casey, a balancing approach was once again at the center of abortion law. In Whole Woman’s Health, the Court also addressed what Casey’s undue burden standard required.²⁴¹ The Court ultimately answered this question by laying out a balancing analysis required by the undue burden test.²⁴² This Article next examines how Whole Woman’s Health adopted such an approach, how the lower courts have applied it, and what the uses of balancing reveal about its limitations. Whole Woman’s Health concerned two parts of Texas’s H.B. 2 (HB2).²⁴³ One provision required abortion doctors to have admitting privileges at a hospital within thirty miles.²⁴⁴ The second provision mandated that abortion clinics comply with state regulations governing ambulatory surgical centers (ASCs) even if a clinic relied on medication abortion.²⁴⁵

The impact of HB2 seemed likely to be profound. Most providers did not have, and likely could not get, admitting privileges because, among other reasons, not enough women went to the hospital after an abortion to meet threshold admitting requirements.²⁴⁶ For many clinics, the ASC requirements, especially those demanding the overhaul of clinic facilities, would be prohibitively expensive.²⁴⁷ Data suggested that it would cost clinics $1 million to comply with the ASC regulations; it would be three times more to build a new facility.²⁴⁸

Abortion providers first challenged only the admitting privileges law.²⁴⁹ While the district court held that the requirement created an undue burden, the Fifth Circuit reversed.²⁵⁰ Shortly after, abortion providers returned to court, this time challenging the ASC regulation and arguing that the admitting privileges mandate was unconstitutional as applied to clinics in McAllen and El Paso.²⁵¹ The district court again sided with Whole Woman’s Health,²⁵² and the Fifth Circuit reversed a second time.²⁵³ In part, the Fifth Circuit relied on the doctrine of res judicata, emphasizing that providers could have raised the same challenges during their original lawsuit.²⁵⁴ The court further offered its perspective on what the undue burden standard required.²⁵⁵ The court first applied a rational basis test, then asked whether the law unduly burdened a woman’s abortion decision.²⁵⁶

When the Supreme Court took the case, those on both sides disputed what the undue burden standard required.²⁵⁷ Representing Whole Woman’s Health, the Center for Reproductive Rights (the Center) insisted that “[t]he undue burden standard strikes a careful balance between a woman’s liberty to make decisions about childbearing . . . with ‘the State’s profound interest in potential life.’”²⁵⁸ The Center argued that the courts had to weigh “the severity of the obstacle relative to the strength of the state’s interest in imposing it.”²⁵⁹ To determine the purpose of the law, as the Center saw it, the Court should not blindly accept legislators’ account of what they were doing.²⁶⁰ Instead, the Court would have to evaluate whether a law reasonably advanced its stated end.²⁶¹

The Center argued that the decrease in abortion access would have an impermissible effect, “increasing the wait time for appointments at abortion facilities and the distances that many women would have to travel to reach those facilities.”²⁶² Insisting that these effects had to be weighed against the health benefits (or lack thereof) created by the Texas law, the Center argued that HB2 unduly burdened women’s rights.²⁶³

Texas read the undue burden standard quite differently.²⁶⁴ Rather than evaluating the strength of the government’s purpose, the Court, as Texas saw it, should recognize that “[c]onstitutional analysis of a statute’s purpose is highly deferential.”²⁶⁵ The fact that lawmakers knew or should know that HB2 would close clinics did not change the analysis.²⁶⁶ “In any industry, businesses that do not meet governing regulations may not be able to operate, and a legislature may be well aware of that fact,” Texas reasoned.²⁶⁷ “But that does not prove a legislative purpose to produce whatever effects may flow from closing a business, rather than to achieve the public-welfare benefits of the regulations.”²⁶⁸ Furthermore, Texas argued that the law would have little effect, as most women would still live near metropolitan areas with an abortion clinic.²⁶⁹

In June 2016, a short-handed Court handed down a five-to-three decision adopting a balancing analysis similar to the one the Center proposed.²⁷⁰ After holding that res judicata did not bar the petitioners’ challenge, the Court turned to the meaning of the undue burden standard.²⁷¹ The Court first clarified that Casey required “that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”²⁷² How would this analysis work? The Court offered little guidance but referred to two provisions analyzed by Casey: the parental-notification law upheld in that case and the spousal-notification measure struck down by the Court.²⁷³ In both of these cases, as the Court in Whole Woman’s Health explained, the Court performed a “balancing.”²⁷⁴

The Court further clarified what kind of evidence would factor into the balance Casey commanded.²⁷⁵ Texas argued that under the Court’s earlier decisions, lower courts should defer to lawmakers’ assessments of contested scientific evidence.²⁷⁶ Thus, although the Court should defer to Texas legislators’ conclusion that HB2 would protect women’s health,²⁷⁷ it rejected this argument.²⁷⁸ Instead, it held that courts performing a balancing test should place the most “weight upon evidence and argument presented in judicial proceedings.”²⁷⁹

The Court’s application of the balancing test offered additional guidance.²⁸⁰ The Court stressed that the record contained no evidence that the admitting privileges provision solved a problem.²⁸¹ The Court in Whole Woman’s Health reasoned that the complication rate for abortion was low, that even fewer complications resulted in hospitalization, and that more serious complications did not become apparent at the clinic when admitting privileges would come into play.²⁸² The Court further measured the benefit achieved by the admitting privilege law as compared to the measures that were previously in place.²⁸³ The Court in Whole Woman’s Health performed a similar analysis of the ASC provision.²⁸⁴

The Court weighed the burdens created by the admitting privilege and ASC provisions of HB2 against their lack of achieved benefits.²⁸⁵ The Court in Whole Woman’s Health reasoned that there was enough evidence supporting the district court’s conclusion that the facilities that could comply with HB2 could not meet the demand created by the number of clinics HB2 would force to close.²⁸⁶ The Court further reasoned that given the lack of benefit delivered by the law, other burdens were also constitutionally cognizable.²⁸⁷ The Court noted that if HB2 went into effect, women would be “less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.”²⁸⁸

At first, Whole Woman’s Health may seem to cast balancing approaches in a positive light. After all, the Court used a balancing analysis to put real teeth in the undue burden standard and strengthen protections for abortion rights.²⁸⁹ In the context of ART, it seems possible to use a balancing analysis to protect emerging constitutional interests in seeking or avoiding parenthood. Whole Woman’s Health also appears to offer solid guidance about how balancing should proceed.

However, the lower courts’ application of Whole Woman’s Health should create concern for those who hope to use a balancing test to sort out the competing interests at stake in embryo-disposition cases. This Section next explores these efforts to apply Whole Woman’s Health.

C. Knowing What to Balance:
The Aftermath of Whole Woman’s Health

Since the Court decided Whole Woman’s Health, lower courts have grappled with exactly how the Court’s balancing analysis fits in existing abortion jurisprudence. The case law created in the aftermath of Whole Woman’s Health should give us pause.

For example, several courts have dealt with laws similar to HB2’s admitting privileges requirement.²⁹⁰ Some of these cases address laws virtually identical to HB2 that required admitting privileges at a hospital within thirty miles of a clinic.²⁹¹ Others vary slightly, such as Arkansas’s requirement that abortion providers contract with a physician or hospital that can deal with any ensuing complications.²⁹²

The results in these cases showcase the difficulty of understanding—and applying—a balancing analysis consistently when the facts (and courts’ views of the constitutional stakes) vary. Consider the clashing results reached by the district court and the Eighth Circuit when evaluating the Arkansas Abortion-Inducing Drug Safety Act.²⁹³ This law requires any physician dispensing medical abortion to have a contract with a physician dedicated to handling emergencies.²⁹⁴ That physician, in turn, must have “active admitting, gynecological/surgical privileges at a hospital designated to handle any emergencies associated with . . . an abortion-inducing drug.”²⁹⁵

Relying on Whole Woman’s Health, Planned Parenthood of Arkansas and Eastern Oklahoma challenged the constitutionality of the law.²⁹⁶ In applying Whole Woman’s Health’s balancing test, the district court first considered whether the law added any benefit when compared to the protocols that Planned Parenthood already had in place.²⁹⁷ Arkansas claimed that the law guaranteed continuity of care for women, thereby improving health outcomes.²⁹⁸ In evaluating this argument, the district court focused on the language of the statute, noting that Arkansas did not require the physician addressing complications to have a prior relationship with a patient, accompany her to the hospital, or otherwise guarantee continuity of care.²⁹⁹

The court also reasoned that the law did not guarantee more continuity of care than did Planned Parenthood’s protocols.³⁰⁰ Because abortion was relatively safe, women rarely reported complications; and, Planned Parenthood instructed patients to call Planned Parenthood’s twenty-four-hour helpline.³⁰¹ When the circumstances demanded it, Planned Parenthood also referred patients to emergency facilities, communicated with hospital staff, and arranged for follow-up care.³⁰² Because Planned Parenthood took extensive precautions to address complications, and because there did not seem to be any problem in the first place, the court found that the Arkansas statute was a “solution in search of a problem.”³⁰³

When it came to the effect of the law, the court observed that Planned Parenthood had not been able to contract with a physician and would be unable to do so in the future.³⁰⁴ If the contracted physician provision went into effect, as the court explained, only one clinic would continue providing abortions in the state and all of them which would be surgical.³⁰⁵ As the court saw it, the burdens of Arkansas’s law outweighed the benefits.³⁰⁶

However, the Eighth Circuit reversed, seeing Whole Woman’s Health’s balancing analysis quite differently.³⁰⁷ The court’s analysis turned on the meaning of Casey’s large-fraction test, under which the plaintiff can prevail by demonstrating that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”³⁰⁸ The Court in Whole Woman’s Health clarified that the large-fraction test applied to women “for whom [the provision] is an actual rather than irrelevant restriction.”³⁰⁹

The district court had zeroed in on women affected by the law,³¹⁰ but as the Eighth Circuit saw it, the district court abused its discretion by failing to estimate a specific number of women who would be burdened by the Arkansas law.³¹¹ Although insisting that the district court did not need to calculate the exact number of women who would have to postpone or forego abortions, the court demanded more specificity.³¹²

The Eighth Circuit also suggested that Planned Parenthood needed to do more to show that existing facilities could not expand to meet increased patient demand.³¹³ The court further questioned whether even under Whole Woman’s Health, increased wait times, crowding, and lower quality of care would count as a burden in the first place.³¹⁴ Whereas the lack of a health benefit was decisive in Whole Woman’s Health, the benefit, or lack thereof, played no part in the Eighth Circuit’s analysis.³¹⁵

The Eighth Circuit’s approach stood in tension with that of other courts considering admitting privilege statutes. Consider June Medical Services LLC v. Kliebert,³¹⁶ a Louisiana case involving another law similar to HB2.³¹⁷ Louisiana “Act 620” mandates that abortion performing physicians have “active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed . . . and that provides obstetrical or gynecological health care services.”³¹⁸ The district court enjoined enforcement of the law, stressing that Louisiana lacked any evidence demonstrating that abortion clinics improperly treated abortion or that admitting privileges would prevent any negative outcomes.³¹⁹ The court estimated that 10,000 women sought abortions in Louisiana.³²⁰ If the law went into effect, only one provider would remain.³²¹ The court concluded that there was no way for this doctor, who currently performed fewer than 3000 abortions a year, to meet the demand that would be created by the law.³²² Based on these findings, the court reasoned that the number of self-induced abortions would increase and women would face delays, increased travel distances, and a lower quality of care.³²³ The Fifth Circuit reversed the district court in June Medical Services L.L.C. v. Gee,³²⁴ insisting that the Louisiana law differed from the one in Whole Woman’s Health.³²⁵ Because the law would result in fewer clinic closures and because the Fifth Circuit found evidence that Louisiana’s law would benefit women, the court distinguished it from Whole Woman’s Health.³²⁶

It is possible to distinguish the laws analyzed in these cases: for example, the Arkansas law did not specify a distance to a hospital at which a doctor had admitting privileges.³²⁷ In theory, the Supreme Court could resolve any ambiguities in how the Whole Woman’s Health balancing approach should apply. The Court could explain how precise a lower court needs to be in its estimate of the number of women affected by a law or how important it is that a law does not seem to address a grave problem.

Without such guidance, the Court’s balancing approach invites the kind of inconsistency that now characterizes the lower courts’ decisions. In Whole Woman’s Health, the court took an approach that is inherently open-ended and fact-intensive. Under such an approach, lower courts are able to uphold laws that look almost exactly the same as the one struck down in Whole Woman’s Health by simply distinguishing the facts of the case. The Eighth Circuit suggested that Arkansas’s contracted-physician requirement might impact a relatively smaller number of women than HB2.³²⁸ The court further suggested that the burdens stressed in HB2—including increased travel distances, waiting times, or a lower quality of care—mattered because of the facts of that case rather than because of any generalizable principle.³²⁹

Moreover, courts have reacted differently to Whole Woman’s Health’s conclusion that abortion is safe and that admitting privilege requirements do not address a real problem.³³⁰ For some courts, a law delivering no benefit cannot justifiably benefit women even if the burdens remain hard to quantify precisely.³³¹ For the Eighth Circuit, by contrast, the burden is paramount.³³² Even if the Arkansas Abortion-Inducing Drug Safety Act did almost nothing for women, it would be constitutional so long as it did not burden a sufficiently large number of women.³³³

The aftermath of Whole Woman’s Health highlights additional problems with a balancing approach. When it comes to politically-charged issues like embryo disposition or abortion, courts will almost inevitably view the facts differently. Balancing approaches invite discordant results. In the abortion context, for example, courts can disagree about the degree of the benefit or burden created by a law and the relative importance of the advantages and disadvantages of a law. Courts can also reach conflicting results when the evidence is—or is claimed to be—contested, resolving medical or factually uncertain questions in disparate ways. Something similar can easily take place in the ART context. Courts can disagree about the relative importance of competing interests in seeking and avoiding procreation and the hierarchy of procreative rights. When there are medical questions about the prospects of future fertility or ideological questions about the comparability of adoption, courts can also reach strikingly different outcomes.

In the ART context, this uncertainty is especially disturbing. As the Supreme Court recognized in Casey, women have ordered their lives around the availability of legal abortion.³³⁴ The legal uncertainty that is so obvious in the aftermath of Whole Woman’s Health makes it harder for women to know when and if abortion will be available. Inconsistent results can have an even greater chilling effect. Couples using ART undergo a time-consuming procedure like IVF to procreate, and often they complete extensive paperwork addressing their options after embryos are created.³³⁵ With an uncertain balancing test in place, those using ART have no way of knowing ex ante how a court will view the soundness of the documents governing embryo disposition or the facts of a particular case. While ART holds out the possibility of well-planned, deliberate reproduction, balancing approaches show that any such promise is hollow.

By looking at the history evaluated here, Part III closely examines the problems with leading approaches to embryo-disposition disputes. Part III then proposes a solution that should lead to more predictable, fair, and constitutionally sound outcomes in embryo-disposition suits.

III. Beyond Balancing

Most courts addressing embryo-disposition cases conclude that it would be better if the parties reached their own decision about what to do. For this reason, the majority of courts that follow the court’s approach in Kass and look for an appropriate contract to resolve embryo-disposition suits.³³⁶ Even the mutual, contemporaneous agreement strategy adopted in Witten demands an agreement on the part of those contesting embryo disposition.³³⁷ In practice, however, an adequate contract is hard to come by. Most of those who use IVF, like Vergara and Loeb, at most, sign forms that address disputes between patients and fertility clinics.³³⁸ Some have no written agreement at all.³³⁹ Lacking a convincing agreement, courts often fall back on a balancing analysis.³⁴⁰

The history of balancing in the abortion context illuminates some of the problems that will arise if courts continue to follow a similar approach in embryo-disposition suits. First, a balancing analysis makes it harder for courts to get right the tricky constitutional questions that will inevitably come up in embryo-disposition suits. Judges applying balancing tests could send the message that the right to abortion is not truly fundamental.³⁴¹ By siding with a father, courts would send the message that many men have personal circumstances that could outweigh any liberty interest in abortion that the Constitution recognizes.³⁴² As important, a balancing test tends to generate quite different results in different jurisdictions, sending conflicting messages about the relative strengths of someone’s interest in seeking or avoiding procreation.³⁴³

ART has started a series of crucially important debates about the relationship between constitutional law and reproduction.³⁴⁴ The Supreme Court’s case law on abortion and contraception suggests that the Constitution recognizes rights to seek and avoid procreation,³⁴⁵ but related constitutional questions have no clear answer. Does the Constitution just recognize a right to terminate a pregnancy or use contraception? Is there a broader right to seek parenthood? What kind of parenthood: functional, gestational, or genetic? Does a right to seek parenthood outweigh the right to avoid parenthood?

These are significant questions, and balancing approaches send a puzzling message about these constitutional issues. Courts have reached conflicting results in these cases. In some instances, courts have held that one party’s interest in avoiding parenthood outweighs another’s desire to seek parenthood.³⁴⁶ Others have sided with the party seeking parenthood if the use of embryos represents someone’s last procreative chance.³⁴⁷ The courts should address blockbuster questions of this kind after appropriate deliberation, argument, and briefing.

Balancing tests invite judges to base their decisions on the relative weight of a particular person’s interest in seeking or avoiding procreation. These decisions can send a message that the Constitution generally does or does not recognize a particular right without giving courts the best possible opportunity to consider the many issues in play in the ART context.

Balancing approaches also invite judges to impose their own views about an individual’s desire to be (or not to be) a parent. As the history considered here suggests, judges focus on the strength of the reasons people have in making parenting decisions.³⁴⁹ In debate about abortion, judges weighed people’s sexual histories, lifestyles, attitudes about parenting, and life plans.³⁵⁰ Prejudices can affect the judgments of courts applying a balancing analysis. These prejudices lead to unpredictable results and to highly unfair outcomes. Someone’s ability to become a parent—or avoid unwanted parenthood—should not depend so much on judges’ personal proclivities and evaluations of the parties’ characters.

The history studied here further suggests that balancing approaches fail to deliver the kind of clarity that parties need when making vital reproductive decisions. When pro-lifers championed men’s rights, the outcome in court depended on the stories told by individual parties and the ideological predisposition of individual judges.³⁵¹ Following Whole Woman’s Health, courts have also reached clashing decisions, reading the facts differently and disagreeing about the relative weight of the different factors to be balanced. Individuals and couples using ART need legal guidance about the likely consequences of deeply important personal decisions. Balancing approaches will not likely do the job.

A. Lessons from Family Law Contracting

Due to the potentially significant inefficiencies that are inherent when using the balancing approach, a better alternative must be found when analyzing ART cases. In looking for strategies for improvement, we should look at the rules governing contracting in family law, including those covering premarital agreements, mid-marriage contracts, separation agreements, and surrogacy contracts. Of course, embryo-disposition agreements are quite different from some of these family law contracts. Separation agreements, for example, come into a play after a relationship is over when a couple lays out how they want to handle matters from marital property division to child custody.³⁵² By contrast, couples routinely enter into embryo-disposition agreements before a pregnancy takes place and when a romantic relationship between partners is ongoing.³⁵³

Surrogacy agreements are also dissimilar from embryo-disposition contracts. In most states, surrogacy is legal only under limited circumstances, such as when a couple is unable otherwise to bring a pregnancy to term or only for couples rather than individuals.³⁵⁴ Surrogacy agreements thus focus partly on avoiding the legal missteps that could otherwise void a contract. There are fewer laws limiting access to IVF or regulating the disposition of excess embryos,³⁵⁵ and embryo-disposition contracts do not seem to touch on some of the concerns some hold about surrogacy, including the psychological risks for surrogates and the exploitation of poor, non-white women as gestational carriers.³⁵⁶ As important, surrogacy agreements deal primarily with the relationship between respective parental rights of the intended parents and the gestational carrier.³⁵⁷ Embryo-disposition contracts, by contrast, should center on the wishes of the intended parents and the relationship between them.

B. A Model for Contracting

While mid-marriage and premarital agreements both deal with issues related to those in embryo-disposition contracts, prenuptial contracts offer the best analogy. Couples enter into mid-marriage agreements in some states when one spouse is contemplating divorce.³⁵⁸ The agreements change the terms of property division upon divorce and serve as a means of reconciling the parties.³⁵⁹ While both mid-marriage and embryo-disposition agreements come into play during intact relationships, the circumstances surrounding the forging of these contracts can be quite different. Some courts tolerate mid-marriage agreements, often called reconciliation contracts, as a way to avoid divorce.³⁶⁰ Couples entering embryo-disposition contracts will not often be contemplating separation or divorce.³⁶¹ Indeed, before IVF begins, couples may be unduly optimistic about the outcome of ART procedures and the future of a romantic relationship.³⁶² The threat of abuse inherent in each type of agreement is also different. Courts have criticized mid-marriage agreements because one partner can leverage another’s attachment to an existing union to get a more favorable property settlement.³⁶³ Embryo-disposition agreements more often raise concerns because partners will not have thought out possible contingencies or vital legal consequences.³⁶⁴

Prenuptial agreements and embryo-disposition contracts cover the most common ground. Couples often enter into these types of contracts before forging a legal relationship—when either partner might have trouble anticipating changing circumstances. Optimism bias might affect those entering into either type of agreement, and since those forming either kind of agreement are usually in a functioning relationship, the parties to such an agreement will trust one another and not bargain at arms’ length.³⁶⁵

The legal treatment of prenuptial agreements provides a starting point for a new approach to embryo-disposition contracts. Some states still treat all prenuptial agreements as inherently suspect, but many others honor such contracts if certain procedural and substantive safeguards are in place.³⁶⁶ States have attached special importance to “due process in formation . . . and certain minimal standards of substantive fairness.”³⁶⁷

The most recent draft of the Uniform Premarital and Marital Agreements Act (UPMAA) offers a starting point for states searching for a better approach to embryo disposition.³⁶⁸ Under the UPMAA, a written premarital agreement signed by both parties is unenforceable if the party against whom enforcement is sought can prove one of the following: the agreement was involuntary or the result of duress, the party seeking enforcement did not have access to legal counsel, or the agreement was signed without full financial disclosure by one of the parties.³⁶⁹ As an alternative to legal counsel, the party seeking enforcement can point to a notice of waiver of rights or a plainly written explanation of the rights and responsibilities changed by the contract.³⁷⁰ Independently of these procedural requirements, courts can refuse to enforce a term in the agreement if, taken in the context of the agreement as a whole, the term was unconscionable at the time of signing³⁷¹ or enforcement of the term imposes substantial hardship on one party.³⁷²

Underlying the provisions of the UPMAA are several core assertions. First, the procedural focus of the act reflects a belief that independent counsel or an alternative “is crucial for a party waiving important legal rights.”³⁷³ The substantive dimensions of the UPMAA deal both with the threat to economically-vulnerable parties and with outcomes that do not even roughly correlate with the parties’ contributions to a marriage.³⁷⁴ Courts have looked at a variety of factors in measuring unconscionability.³⁷⁵

Unconscionability does not seem relevant to embryo-disposition agreements. Courts view some contracts as unconscionable partly because prenuptial agreements deal so heavily with money.³⁷⁶ If enforcing an agreement will make one party dependent on the state for support, for example, states often bar enforcement.³⁷⁷ Embryo-disposition agreements do not deal with the division of financial assets. Anxieties about the poverty of one party common to prenuptial agreements will not arise in the context of embryo-disposition agreements.

Courts can also view agreements as unconscionable because they do not reflect the contributions of each partner to a marriage.³⁷⁸ The law of both marital property and spousal maintenance turns on the idea that marriage is a partnership; each partner’s treatment after the dissolution of a relationship mirrors what that person added to the partnership.³⁷⁹ The same principles do not govern embryo-disposition agreements.

However, the concerns about informed consent animating the UPMAA resonate powerfully on in the context of embryo disposition. Rarely do couples starting IVF consult a lawyer.³⁸⁰ Any explanation of the rights imposed or waived by an agreement may be buried deep in page-long forms that couples can easily miss.³⁸¹

Of course, when parties sign most contracts, ignorance of the terms of an agreement is not a defense.³⁸² But in the case of either embryo disposition or marriage, the stakes are considerably higher.³⁸³ Indeed, when it comes to embryo disposition, constitutional rights may be in play. As important, the parties to both kinds of agreement are not as likely to defend themselves, trusting unduly in their partner and exaggerating the odds of a favorable outcome.

By passing a model statute, states can make clear ex ante what the parties need to do to ensure that courts will enforce an agreement. Moreover, in mandating that agreements satisfy certain procedural requirements, states can increase the odds that couples using IVF will understand the gravity of embryo-disposition decisions.

1. The model statute

First, states should demand that embryo-disposition agreements be voluntary. In the context of premarital contracts, courts have defined voluntariness in radically different ways.³⁸⁴ All states treat agreements as involuntary if one couple used physical violence to coerce another into signing on.³⁸⁵ Other states go further, treating an agreement as involuntary if one partner presents it in the days immediately before a wedding when it would be embarrassing, emotionally difficult, or financially trying to refuse to sign.³⁸⁶ Which of these approaches makes the most sense in the context of embryo disposition? If a couple must enter into a contract before beginning IVF, there is nothing suspect about forging an agreement shortly before a procedure begins. Nevertheless, more extreme forms of duress, including domestic violence, can shape the terms of an agreement, and courts should void any contract resulting from it.

Second, states should require those entering into an embryo-disposition agreement to have both access to independent counsel and a full disclosure of the rights created or destroyed by different disposition decisions. Access to counsel, in turn, should mean time to identify appropriate representation. As an added safeguard, the agreement itself should spell out the ramifications of each disposition decision. Courts should resort to a balancing analysis only if an agreement fails one of these enforcement criteria.

Such a model statute is far from perfect. Just as is the case with prenuptial agreements, embryo-disposition agreements can come before the courts years after their original signing. Given the delay between contract formation and enforcement, it is hard for the parties to anticipate changing circumstances. As the Witten Court notably pointed out, people routinely change their minds about matters as intimate as embryo disposition, and a model statute would still hold the parties to a contract that may not reflect their present-day feelings about procreation.³⁸⁷ Inevitably, some couples will not enter into any agreement or will disregard the consequences written into a contract. After all, those beginning IVF are likely to be optimistic about both their relationship to one another and the success of ART and may not take seriously warnings about what an agreement truly entails.

Just the same, a model statute would represent a significant improvement—one that has advantages that other alternatives do not. Many of the informed-consent documents on which courts have relied are not designed to deal with disputes between the parties using IVF. There is evidence that parties cannot easily digest the information in lengthy forms and almost never have the assistance of counsel in doing so.³⁸⁸ Putting some guardrails in place will improve the odds that contracts reflect the informed consent of both people who have created embryos.

The model statute also will deliver fairer outcomes than the mutual, contemporaneous consent approach recommended in Witten. Ideally, the disposition of embryos would always reflect the consensus of both embryo creators in the present day. In practice, however, embryo-disposition disputes arrive in court because creators cannot arrive at any such agreements.³⁸⁹ A mutual, contemporaneous consent approach systematically disfavors the person seeking to use the embryos.³⁹⁰ Such a result may not best capture any common ground between the creators.

Other scholars have argued that courts should always side with a party avoiding, rather than seeking, procreation.³⁹¹ There are sound arguments in support of this point.³⁹² However, since the contours of the rights to seek or avoid procreation remain unclear, the relative weight—and boundaries—of the rights tied to genetic parenthood deserve much further consideration before a court adopts a one-size-fits-all approach to ART disputes. As judges hash out the constitutional rights in play in embryo-disposition cases, courts should honor the informed, written wishes of those mostly deeply affected by embryo disposition.

Conclusion

The front-page fight between Vergara and Loeb is just the most notorious of the many battles about the disposition of embryos. The courts have developed a number of approaches to these disputes, but most have followed Kass, looking for a valid contract and applying a balancing test if no such agreement can be found. In practice, balancing analyses continue to play a vital role in embryo-disposition struggles. Possible contracts—often informed-consent documents covering the relationship between a clinic and a couple—may not address the most important issues in embryo disposition. Although states have adopted different versions, balancing analyses generally ask courts to weigh each individual’s interest in seeking or avoiding genetic parenthood.

In the past, balancing tests have played a central role in determining who has rights in the context of reproduction. Balancing approaches can send a powerful message about the relative weakness of the constitutional rights at stake in assisted reproduction. Balancing analyses also play to the prejudices of judges about the character of individual litigants and the relative merits of seeking or avoiding parenthood. Moreover, balancing almost always guarantees uncertain outcomes, making it much harder for couples to plan out their reproductive futures.

Looking to other family law contracts, particularly those governing prenuptial agreements, provides guidance about how to improve the odds that couples will make an informed, thoughtful decision about the future of the embryos they create. Better contracts will hardly deliver perfect results. But the fate of embryos is politically, personally, and ideologically important. It is imperative that the law better encourages people to take embryo-disposition decisions as seriously as they should.

Beyond Balancing: Rethinking the Law of Embryo Disposition

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