Issue 42.1 - 3.23.22


112                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

REPRODUCTIVE INDETERMINACY AND RIGHTS 
DISCOURSE IN FROZEN EMBRYO DISPUTES 

 
JESSICA KNOUSE* 
 

Abstract 
 

The lived experience of reproduction is infused with indeterminacy. Judicial 
rhetoric, in contrast, operates in absolutes. Litigants are perceived in binary terms as 
fertile or not, trying to procreate or not, pregnant or not, and parents or not—when 
the reality of their situations is far more complicated. Rights are similarly perceived 
in binary terms, such that a litigant seeking procreative autonomy may assert either 
the “right to procreate” or the “right to avoid procreation”—even if neither accurately 
describes what she wants. Disputes over frozen embryos provide unique insight into 
this problem because they involve parties who have experienced months, if not years, 
of reproductive indeterminacy and who, at the point of litigation, make opposing 
rights claims. When a couple disagrees about the disposition of jointly created frozen 
embryos and the disagreement is not resolved by contract, most courts apply a 
balancing test: the interests of the party asserting the “right to procreate” are weighed 
against the interests of the party asserting the “right to avoid procreation.” Ordinarily, 
the latter prevails, unless the party wishing to procreate lacks a “reasonable” path to 
parenthood without the embryos. Whether a “reasonable” path exists often turns on 
whether the party wishing to use the embryos is perceived as fertile, in which case 
her claim will likely be denied, or sterile, in which case it may succeed. 

 

 
© 2021 Knouse. This is an open access article distributed under the terms of the Creative Commons 
Attribution License, which permits the user to copy, distribute, and transmit the work provided that the 
original author(s) and source are credited. 
 
* Professor of Law, University of Toledo College of Law. This Article benefitted from comments 
received at: the 2018 Family Law Scholars and Teachers Conference; the 2018 Constitutional Law 
Colloquium; the 2019 Law & Society Association Annual Meeting, where it was part of the Feminist 
Legal Theory CRN’s programming; and Albany Law School, my alma mater, where I had the honor of 
delivering an early version of this project at the Katheryn D. Katz ’70 Lecture. I owe special thanks to 
those who engaged with my ideas about reproductive indeterminacy at an early stage, including Shelley 
Cavalieri, Ben Barros, Dan Nathan, Meghan Boone, Maya Manian, Melissa Breger, Steve Clark, and 
Alicia Ouellette. I am grateful for the excellent editorial work of the Columbia Journal of Gender and 
Law and the generous financial support of the University of Toledo College of Law. As always, my 
deepest thanks go to Mike Loegering for his enduring encouragement, wisdom, and love. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     113 

 

 

This framework misses the complexity, contingency, and uncertainty intrinsic in 
all reproductive endeavors. The decision to procreate or avoid procreation is rarely 
singular or stable. People undergoing in vitro fertilization are rarely either fertile 
(able to establish a pregnancy) or sterile (permanently unable to establish a 
pregnancy). They are, instead, infertile, and their infertility has led them to make 
many decisions over the course of many months and often years about how, when, 
and whether to proceed with treatment. And if they achieve pregnancy—not to 
mention parenthood—they will make many more decisions. To describe these 
individuals, in the context of a frozen embryo dispute, as choosing “to procreate” or 
“to avoid procreation” trivializes the complexity of their circumstances. Similarly, 
to assume that a party experiencing infertility has a “reasonable” path to parenthood 
without the embryos is to ignore the reality that, even if she has the resources 
(physical, emotional, and financial) to undergo further treatment, there is no 
guarantee that it will produce gametes, that the gametes will create embryos, that the 
embryos will lead to pregnancy, or that the pregnancy will result in childbirth. By 
erasing inherent indeterminacy, existing judicial rhetoric offers a disappointingly 
limited vision of reproductive potential and reproductive rights. This article draws 
on multiple lines of work, from postmodern feminism to reproductive justice, to 
argue for a new doctrine in which reproductive rights exist not within a binary system 
but rather along a multi-dimensional spectrum. 

 
INTRODUCTION 

 
By exposing the deep indeterminacy inherent in the lived experience of 

reproduction, we can create a positive space for rethinking reproductive rights. 
Courts typically view reproduction through a distinctly modern lens, wherein it is 
comprised of two rights locked in a binary opposition: the right to procreate and the 
right to avoid procreation. While these two rights have historically inhabited separate 
doctrinal spheres, with the former focused on avoiding sterilization and the latter on 
accessing abortion, they presently intersect in a unique subset of cases involving 
frozen embryos. When a divorcing or otherwise separating couple disagrees about 
the disposition of jointly created embryos and no contract resolves their 
disagreement, courts typically “balance” the interests of the party seeking to use the 
embryos to procreate against those of the party seeking to prevent their use and avoid 
procreation. While the outcomes vary across cases, the success of the party wishing 
to procreate often turns on whether the court views her as “fertile” or “sterile.” She 



114                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

will rarely succeed unless she is perceived by the court as “sterile” or, in other words, 
permanently unable to establish a pregnancy.1 

 
This system is built upon multiple false dichotomies. First, rarely is it accurate 

to describe a party wishing to use embryos as definitively fertile or sterile.2 More 
often, that party occupies the interstitial state of infertility,3 wherein her chances of 
achieving parenthood by any means are uncertain: there is no guarantee that further 
treatment will produce either gametes or embryos, that embryos will lead to 
pregnancy, or that pregnancy will result in childbirth. Nevertheless, courts rest their 
decisions on the availability of a “reasonable” alternative path to parenthood. 
Second, rarely is it accurate to describe the parties as invoking singular rights “to 
procreate” or “to avoid procreation.” Their intentions are far more complex: Both 
parties, by the point of litigation, have made many highly contextual decisions over 
the course of many weeks, months, and often years of fertility treatment about how, 
when, and whether to proceed. And if they achieve pregnancy (not to mention 
parenthood), they will make many more. For example, a woman who has undergone 
fertility treatment and achieved a much-desired pregnancy might, if faced with a 
devastating diagnosis, choose abortion. To describe her simply as having chosen “to 
procreate” would be as inaccurate as to describe her as having chosen “to avoid 
procreation.” Nevertheless, courts allow this reductive rights discourse to drive their 
decisions. 

 
Judicial rhetoric in frozen embryo disputes erases indeterminacy and, as a result, 

offers an overly simplistic view of reproductive potential and reproductive rights. 
Postmodern feminism and reproductive justice advocacy, however, create space for 

 
1 Fernando Zegers-Hochschild et al., The International Glossary on Infertility and Fertility Care, 108 
FERTILITY & STERILITY 393, 401 (2017). I have used the pronoun “she” because it is reflective of the 
set of cases this article discusses. However, it is important to note at the outset that pregnancy is 
gendered in ways that can be problematic for transgender men, nonbinary people, and those with 
intersex variations, all of whom might become pregnant. Jessica Clarke, Pregnant People?, 119 COLUM. 
L. REV. F. 173, 179–80 (2019). To understand the complexity of reproduction, one must understand—
among other things—the complexity of the link between gender and pregnancy. Professor Jessica 
Clarke writes that those “who seek to be more inclusive of transgender, nonbinary, and intersex 
identities and variations ought to take seriously the idea of formally disentangling binary concepts of 
‘sex’ and ‘gender identity’ from pregnancy.” Id. 
 
2 Zegers-Hochschild et al., supra note 1. 
 
3 Infertility is typically defined as a “disease characterized by the failure to establish a clinical pregnancy 
after 12 months of regular, unprotected sexual intercourse or due to an impairment of a person’s 
capacity to reproduce either as an individual or with his/her partner.” Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     115 

 

 

a more expansive discussion that acknowledges complexity, indeterminacy, and 
lived experience. We can rarely know whether a party in a frozen embryo dispute 
has a “reasonable” path to parenthood without (or even with) the contested embryos. 
If a court believes there is a path to parenthood without the embryos and rules against 
a woman wishing to procreate, there remains a very real chance that she will not 
become a parent—especially if doing so entails in vitro fertilization (IVF). For 
women under thirty-five who have the resources necessary to pursue IVF, the live 
birth rate is 41–43%; for women over thirty-five, it is significantly lower.4 Even if a 
court believes there is no path to parenthood without the embryos and rules in favor 
of a woman wishing to procreate, there remains a very real chance that she will not 
become a parent. The embryos may not survive thawing, may not be genetically 
viable, may not implant when transferred, or may not produce a live birth. 
Acknowledging the complexity and indeterminacy of these lived experiences 
illuminates alternative possibilities for our rights discourse. 

 
This Article is divided into three major parts: Part I uses postmodern feminist 

theory and reproductive justice advocacy as lenses through which to explore 
reproduction. It begins with an introduction to postmodern feminism: Whereas the 
law (a solidly modern institution) demands certainty and organizes the world into 
binary oppositions, postmodernism is skeptical of and resistant to such constructions. 
In its feminist iterations, postmodernism dismantles patriarchal hierarchies (e.g., 
men/women) through the process of “deconstruction.” Marginalized narratives are 
thereby uncovered and diversity, complexity, and indeterminacy are revealed. 
Having drawn on postmodern techniques to dismantle existing structures, Part I turns 
to the reproductive justice movement to construct a new framework: Growing from 
the work of Black feminists, the movement teaches us to acknowledge the full 
spectrum of reproductive barriers (not just abortion) and to honor the full spectrum 
of reproductive experiences. It attends to the intersectionality of gender with race, 
class, and other traits and seeks out holistic solutions. Finally, Part I argues that these 
two lines of work can together serve to dismantle oppressive categories and expose 
the inherent complexity and indeterminacy that are ever-present in the lived 
experience of reproduction. 
 

Part II begins by exploring frozen embryo disputes. It observes how state courts 
deciding these disputes heavily rely on a false sense of certainty and an uncritical 
embrace of binary oppositions. First, these courts speak as if they can assess with 
certainty whether a party wishing to use contested embryos has a reasonable chance 

 
4 IVF – In Vitro Fertilization, AM. PREGNANCY ASS’N, https://americanpregnancy.org/infertility/in-
vitro-fertilization/ [https://perma.cc/J6VJ-P3A6]. 



116                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

at achieving parenthood without the embryos. This is implicitly an inquiry into 
whether the party is fertile or sterile. It ignores the reality that assessing even a fertile 
person’s chances at parenthood is quite difficult, and that the typical difficulties are 
often magnified for the infertile parties involved in frozen embryo disputes. Courts 
seem to categorize anyone not proven to be sterile as fertile (and able to achieve 
parenthood without the contested embryos). There is, in these cases, a disjunction 
between judicial discourse and reality. Second, these courts collapse reproductive 
rights into a binary where parties may assert either a “right to procreate” or a “right 
to avoid procreation.” This reductive framing fails to capture the parties’ complex 
intentions and thus creates another disjunction between judicial discourse and reality. 
Part II then turns to the source of the binary rights-framing, which lies in Federal 
Supreme Court doctrine. From a federal-constitutional perspective, there are 
essentially two sets of reproductive rights cases: those considering the right to avoid 
state sterilization, and those considering the right to avoid state interference with 
access to contraception and abortion. These cases, like their state court counterparts, 
create a disjunction between judicial discourse and reality. 

 
Part III seeks to eliminate the disjunctions. It begins by exploring the complexity, 

contingency, and indeterminacy of the reproductive experience from the moment a 
couple begins trying to conceive, through the months and years an infertile couple 
may pursue fertility treatments, and (if successful in those treatments) through the 
following pregnancy, childbirth, and neonatal period. While it discusses the 
diagnosis of infertility, a variety of treatments, and some of the challenges of 
pregnancy, childbirth, and the neonatal period, it focuses on IVF and embryo 
creation—experiences shared by all the couples involved in the frozen embryo 
disputes described in Section II.A. It details the five phases of the process: (1) pre-
cycle preparation, (2) ovarian stimulation, (3) egg retrieval, (4) fertilization and 
embryo development, and finally (5) either embryo transfer or cryopreservation for 
later embryo transfer. Having exposed the inherent complexity and indeterminacy of 
reproduction, Part III concludes by drawing on the feminist frames discussed in Part 
I to argue for a move beyond the binary vision of rights described in Part II. It asserts 
that an accurate understanding of the lived experience of reproduction weighs in 
favor of a more expansive and holistic vision of reproductive rights. 
 

I. Feminist Frames for Reproductive Technology 
 

Part I draws on postmodern feminist theory and reproductive justice advocacy 
to illuminate the lived experience of reproduction and its inherent indeterminacy. 
Section I.A discusses postmodern theory and its feminist iterations, which teach us 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     117 

 

 

that the binary oppositions around which much of Western thought is organized—
e.g., male/female, fertile/sterile, pro-life/pro-choice—are artificial constructions that 
ignore the full spectrum of human experience. The postmodern technique of 
“deconstruction”—sometimes described as a “process of demonstrating 
indeterminacy”5—dismantles binary oppositions, problematizes categories, and 
uncovers marginalized narratives. For example, when courts treat litigants as if they 
are either fertile (able to establish a pregnancy) or sterile (permanently unable to 
establish a pregnancy), they erase the uncertainty of infertility, which is experienced 
by 12–13% of couples.6 Similarly, when courts treat litigants as exercising either a 
right to procreate or a right to avoid procreation, they erase the complexity of 
pregnancy intentions. 
 

Section I.B discusses the reproductive justice (“RJ”) movement, the lessons of 
which overlap with and complement postmodern feminist theory. While 
reproductive justice advocates are more overtly political, they (like postmodern 
feminists) resist universalism. The RJ movement acknowledges the ways in which 
our reproductive experiences are shaped by the intersection of many traits, including 
age, race, class, gender, disability, and sexual orientation. Like postmodern 
feminists, RJ advocates resist over-simplification and binary thinking. They 
recognize the traditional focus on abortion and “choice” as both too shallow and too 
narrow. And they recognize the binary conception of rights—in which there is a 
“right to procreate” and a converse “right to avoid procreation”—as inadequate. As 
a result, RJ advocates push for a more holistic and inclusive approach. 

 
Section I.C engages the principles discussed in Sections I.A and I.B to better 

understand the lived experience of reproduction, specifically IVF and the 
surrounding processes. First, it shifts our focus away from the relative absolutes of 
fertility and sterility and contemplates the in-between state of infertility. Second, it 
recognizes the pervasive ambiguity in not only reproductive potential but also 
reproductive intentions. It argues that, just as reproductive potential cannot be 
reduced to fertility or sterility, reproductive intentions cannot be reduced to the desire 
to procreate or avoid procreation. Neither concept is as singular or stable as the law 
depicts. Finally, Part I concludes by gesturing to the idea—developed more fully in 

 
5 Girardeau A. Spann, Deconstructing the Legislative Veto, 68 MINN. L. REV. 473, 536 (1984) (“The 
process of demonstrating indeterminacy is sometimes referred to as ‘deconstruction.’”). 
 
6 Understanding Fertility: The Basics, OFF. OF POPULATION AFFS. OF THE U.S. DEP’T OF HEALTH & HUM. 
SERVS., https://opa.hhs.gov/reproductive-health/understanding-fertility-basics [https://perma.cc/8XH2-
92VB]. 



118                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Part III—that reproductive rights are similarly non-binary. To limit parties to 
asserting a “right to procreate” or “right to avoid procreation” is to ignore the 
complexity and indeterminacy that they actually experience. 

 
A. Postmodern Feminist Theory 

 
Postmodern theory begins from a place of skepticism.7 Although it resists 

definition, philosopher Elizabeth Anderson describes it as “stress[ing] the locality, 
partiality, contingency, instability, uncertainty, ambiguity and essential 
contestability of any particular account of the world, the self, and the good.”8 
Although defining postmodernism by reference to its differences from modernism 
risks falling into the type of binary thinking postmodernists reject, such a comparison 
is common and in some respects useful. After all, to entirely reject modernist 
thinking is modernist in its absolutism.9 One key distinction, then, between 
modernism and postmodernism is the “attitude” toward incoherence, indeterminacy, 
and other realities.10 While modernism perceives these aspects of the world as 
“tragic” and strives “to reestablish a coherence of meaning from fragmentary forms,” 
postmodernism celebrates them.11 As a result, while modernism embraces binary 
oppositions (either/or ways of thinking12) because they offer at least the illusion of 

 
7 Calvin Massey, The Constitution in a Postmodern Age, 64 WASH. & LEE L. REV. 165, 166–67 (2007) 
(“[Postmodernism] is thought to be an attitude of extreme skepticism about meaning, reality, 
knowledge, and truth.”). 
 
8 Id. (quoting Elizabeth Anderson, Feminist Epistemology and Philosophy of Science, THE STANFORD 
ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2004), 
https://plato.stanford.edu/archives/sum2004/entries/feminism-epistemology/ [https://perma.cc/7RXD-
VVZB]). 
 
9 Adam Todd, Neither Dead nor Dangerous: Postmodernism and the Teaching of Legal Writing, 58 
BAYLOR L. REV. 893, 907 (2006) (“A complete rejection of modernism is itself a modernist act.”). As 
Professor Elizabeth Anderson explains, “There can be no complete, unified theory of the world that 
captures the whole truth about it.” Anderson, supra note 8. 
 
10 Massey, supra note 7, at 169–70 (citing Mary Klages, Postmodernism, UNIV. OF IDAHO (Dec. 6, 
2001), https://www.webpages.uidaho.edu/~sflores/KlagesPostmodernism.html 
[https://perma.cc/E3ZU-EAQK]).  
 
11 Id. 
 
12 Stephen M. Feldman, Can Law Be a Source of Insight for Other Academic Disciplines?, 8 WASH. U. 
JURIS. REV. 151, 158 (2016). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     119 

 

 

coherence and determinacy, postmodernists deconstruct such oppositions.13 It is 
through this technique of deconstruction that postmodern thinkers are able to 
uncover previously marginalized experiences and promote diversity and equality. 

 
Whereas much of modern thought is organized around the desire for certainty—

for clear categories that can be organized into binary oppositions with hierarchical 
structures (e.g., white/Black, man/woman, straight/gay)—postmodern thought 
recognizes that any sense of certainty, as well as all categories, oppositions, and 
hierarchies, are to some degree artificial constructions.14 The selection of any one 
category represses others, and the hierarchical opposition of any two categories 
continues to reside in that same repressive system.15 Such a system cannot reflect 
reality and, to uncover the full spectrum of human experience, must be 
deconstructed. Although deconstruction, like postmodernism, resists definition, 
Derrida described it as involving both “a reversal of the classical opposition and a 
general displacement of the system.”16 A completed deconstruction, in other words, 
both inverts the hierarchy within the opposition and renders the categories 
themselves meaningless.17 According to Professor Pierre Legrand, deconstruction 
“pushes away from simplification and (binary) reduction towards complexification 
and expansion.”18 It “moves beyond dualism towards something that is neither A nor 

 
13 Stephen M. Feldman, An Arrow to the Heart: The Love and Death of Postmodern Legal Scholarship, 
54 VAND. L. REV. 2351, 2366 (2001). 
 
14 As Professor Elizabeth Anderson explains, according to postmodern principles, “the world does not 
dictate the categories we use to describe it.” In fact, “words get their meaning from their relations to 
other words rather than from their relation to some external reality[.]” Ultimately, “innumerable 
incompatible ways of classifying the world are available to us, and . . . the selection of any one theory 
is a choice that cannot be justified by appeal to ‘objective’ truth or reality.” Language is powerful, and 
the selection of any particular set of categories is an exercise of power that “exclude[s] certain 
possibilities from thought and . . . authorize[s] others.” Massey, supra note 7, at 167–68 (quoting 
Anderson, Feminist Epistemology and Philosophy of Science, supra note 8). 
 
15 Pierre Legrand, Paradoxically, Derrida: For a Comparative Legal Studies, 27 CARDOZO L. REV. 631, 
698 (2005) (explaining that “one must recognize that within a text there is a structure whereby one term 
hides, represses, or prohibits another” and that “one cannot . . . continue to operate within the 
deconstructed system – to ‘reside’ within it”, quoting JACQUES DERRIDA, POSITIONS 56 (1972)). 
 
16 JONATHAN CULLER, ON DECONSTRUCTION: THEORY AND CRITICISM AFTER STRUCTURALISM 85–86 
(1982) (quoting Jacques Derrida, Signature Event Context, in LIMITED INC 21 (Samuel Weber trans., 
Nw. Univ. Press 1988) (1972)). 
 
17 Jessica Knouse, Using Postmodern Feminist Legal Theory to Interrupt the Reinscription of Sex 
Stereotypes Through the Institution of Marriage, 16 HASTINGS WOMEN’S L.J. 159, 165 (2005). 
 



120                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

B and that is not a third term (such as C) that would provide a resolution of the A-B 
antagonism.”19 

 
Deconstruction can be thought of as a “process of demonstrating 

indeterminacy.”20 From a technical perspective, it begins by illustrating that the 
categories in any opposition are interdependent, such that any hierarchy between 
them is unstable. The dominant category (e.g., white, man, straight) is shown to 
depend on the opposing and “supposedly subordinate” category (e.g., Black, woman, 
gay).21 This dependence illustrates that the hierarchy could actually be inverted.22 
Yet, as previously mentioned, a single inversion does not complete the process 
because the newly dominant category is also subject to deconstruction.23 Only 
through repeated inversion of the hierarchy is the system displaced.24 And as the 
system fails, so do its categories. They are shown to be inaccurate, because the 
experience they describe is neither binary nor universal (as they suggest), but instead 
multiple, individual, and highly contextual. Deconstruction thus exposes categories 
as “insensitiv[e] to context.”25 As Professor Jack Balkin explains, categories “lump 
some things together as similar and exclude others as different, without attending to 
the similarities across, or the differences within, the boundaries that they establish.”26 
They are “a sort of falsification or oversimplification of the situation.”27 What they 
attempt to describe with clarity and certainty is, in fact, indeterminate. 

 
18 Legrand, supra note 15, at 698. 
 
19 Id. 
 
20 Spann, supra note 5, at 536 (“The process of demonstrating indeterminacy is sometimes referred to 
as ‘deconstruction.’”). 
 
21 Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory 
Interpretation, 65 S. CAL. L. REV. 2505, 2527–28 (1992). 
 
22 Id. 
 
23 Id. (explaining that “the new dominant concept can itself be deconstructed”). 
 
24 Id. 
 
25 J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131, 1173 
(1994). Professor Balkin is specifically talking about categorical judgments. 
 
26 Id. 
 
27 Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     121 

 

 

Although deconstruction is often attacked as nihilistic,28 it can provide a 
meaningful path toward justice. Professor Balkin explains that “we deconstruct legal 
categories because they deviate from what is just.”29 In describing what he calls 
“transcendental deconstruction,” he writes: 

 
[The] goal is not destruction but rectification. The deconstructor 
critiques for the purpose of betterment; she seeks out unjust or 
inappropriate conceptual hierarchies in order to assert a better 
ordering. Hence, her argument is always premised on the possibility 
of an alternative to existing norms that is not simply different, but 
also more just, even if the results of this deconstruction are imperfect 
and subject to further deconstruction.30 
 

By this account, deconstruction creates space to rethink systems. Once we 
acknowledge that our current categories overlook inherent diversity, multiplicity, 
and indeterminacy, we can work to expose and honor the erased meanings, identities, 
and experiences. 
 

Some feminists have built upon this postmodern framework to reveal the 
particular ways that categories have harmed women. While a complete rejection of 
gender categories is politically problematic, skepticism of such categories is 
productive. Postmodern feminism targets categories that have historically 
subordinated women and exposes these categories as porous and unstable. Professor 
Judith Butler, for example, warns us against erasing diversity and complexity within 
gender categories. Professor Butler writes: 
 

[T]he category of women is internally fragmented by class, color, 
age, and ethnic lines, to name but a few; in this sense, honoring the 
diversity of the category and insisting upon its definitional 
nonclosure appears to be a necessary safeguard against substituting 
a reification of women’s experience for the diversity that exists.31 

 
 

28 Id. at 1132–34. 
 
29 Id. at 1174. 
 
30 Id. at 1141. 
 
31 Judith Butler, Gender Trouble, Feminist Theory, and Psychoanalytic Discourse, in 
FEMINISM/POSTMODERNISM 324, 327 (Linda J. Nicholson ed., 1990). 



122                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Professor Johanna Bond, writing about this work, says that the category of women 
“must remain fluid and permeable” with “boundaries . . . flexible enough to 
accommodate the experiences of a diverse group of women.”32 
 

It should be noted that many scholars reject postmodernism, arguing that its 
adherents “deconstruct[] everything and refus[e] to construct anything.”33 Legal 
scholars are particularly hostile to postmodernism, perhaps because law is so 
distinctly modern.34 Yet Professor Balkin, in Deconstruction’s Legal Career, traces 
the unique ways that legal scholars—including some in the Critical Legal Studies 
movement and, later, some critical race theorists and feminists—have deployed 
deconstruction.35 Focusing on feminist legal theorists, Professor Maxine Eichner has 
observed that because the law “is so closely associated with the vision of modernity 
against which postmodernists are reacting[,] . . . feminists who subscribe to 
postmodern tenets may . . . avoid considering legal solutions.”36 Her work identifies 
three ways in which postmodern ideas are used by feminist legal theorists: first, in 
considering the role of “discursive practices . . . in constructing gender oppression[;]” 
second, in resisting gender-based generalizations and moving toward a “politics of 
diversity;” and third, in developing “positive feminist legal projects.”37 She then 
offers a way forward, which entails “the pursuit of heterogeneity,” “revaluation of 
differences,” and “the pursuit of equality and a material politics.”38 
 

This Article embraces the idea that postmodern feminist theory can be useful in 
legal reform efforts, in part because deconstruction clears space for positive change: 
When we dismantle the patriarchal categories that have long subordinated women 
and controlled their reproductive lives, we create room for new possibilities. 
Although some categories will inevitably remain, the law should not force people 

 
32 Johanna E. Bond, Intersecting Identities and Human Rights: The Example of Romani Women’s 
Reproductive Rights, 5 GEO. J. GENDER & L. 897, 901 (2004). 
 
33 Linda Alcoff, Cultural Feminism Versus Post-Structuralism: The Identity Crisis in Feminist Theory, 
13 SIGNS 405, 418 (1988). 
 
34 Maxine Eichner, On Postmodern Feminist Legal Theory, 36 HARV. C.R.-C.L. L. REV. 1, 4 (2001). 
 
35 Jack M. Balkin, Deconstruction’s Legal Career, 27 CARDOZO L. REV. 719, 733–34 (2005). 
 
36 Eichner, supra note 34. 
 
37 Id. at 6. 
 
38 Id. at 67–76. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     123 

 

 

into them. By consciously creating space for diversity, complexity, and 
indeterminacy, the law can avoid erasing individuals and their experiences. As 
Section I.B will show, some postmodern feminist insights resonate with the 
reproductive justice movement. Finally, as Section I.C will show, postmodern 
feminist techniques can be applied not only to gender categories but also to 
categories relating to reproduction. 
 

B. Reproductive Justice Advocacy 
 

The reproductive justice (“RJ”) movement originated with Black feminists and 
teaches us to expand not only our vision of women but also of reproductive rights. 
The term “reproductive justice” was coined in 1994 to describe an already ongoing 
effort by Black women to resist racism and reproductive oppression.39 As Professor 
Dorothy Roberts—whose work was instrumental in moving RJ into legal 
scholarship—explains, the RJ movement “reposition[s] reproductive rights in a 
political context of intersecting race, gender, and class oppressions.”40 It adopts a 
capacious understanding of reproduction that includes “not only a woman’s right not 
to have a child, but also the right to have children and to raise them with dignity in 
safe, healthy, and supportive environments.”41 Whereas the mainstream pro-choice 
movement focuses on “choice,” which effectively “privilege[s] predominantly white 
middle-class women” (i.e., women with choices), the RJ movement extends to 
encompass women who lack privilege, including “poor and low-income women, 
women of color, queer women, women with disabilities, and women whose lives 
revolve around caregiving.”42 And whereas the mainstream pro-choice movement 
“advocates almost exclusively for the legal right to abortion,” the RJ movement 
encompasses a broader array of reproductive possibilities. Rather than focusing on 

 
39 Leigh Creighton Bond & Monika Taliaferro, The Continued Rise of the Reproductive Justice Lawyer, 
23 CHAP. L. REV. 299, 305–06 (2020). 
 
40 Dorothy Roberts, Reproductive Justice, Not Just Rights, DISSENT (Fall 2015), 
https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/YM34-
YDFM]. 
 
41 Id. See also Cyra Akila Choudhury, New Approaches and Challenges to Reproductive Justice, 12 
FIU L. REV. 1 (2016). 
 
42 Roberts, supra note 40. See also What Is Reproductive Justice?, IF/WHEN/HOW, 
https://www.ifwhenhow.org/about/what-is-rj/ [https://perma.cc/997Q-W33W] (“[The movement] 
recognizes the ways race, class, sex, age, sexual orientation, gender expression, immigration status, and 
ability impact access, agency, and autonomy in shaping one’s reproductive destiny.”).  



124                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

one negative right, it recognizes a spectrum of positive rights.43 In sum, the RJ 
movement decenters the privileged and rejects narrow rights discourse. 
 

These features of reproductive justice—decentering the privileged and rejecting 
narrow rights discourse—are in some ways consistent with postmodernism. 
Adherents of each movement seek to transcend binary oppositions and “escape[] the 
frame of either/or.”44 Yet postmodernism is largely theoretical, whereas reproductive 
justice is overtly political. While a postmodern feminist would use the process of 
deconstruction to reveal the category of “women” as masking internal hierarchies 
and erasing existing diversity, an RJ advocate would actively insist on equity and 
inclusion. While a postmodern feminist would expose the negative “right of 
abortion” as an insufficient descriptor of reproductive liberation,45 an RJ advocate 
would actively expand the scope of rights claims in the courts and move into political 
fora.46 Professor Robin West—whose work on RJ issues is widely cited within the 
legal academy—describes some concrete solutions the RJ movement embraces: 
 

Reproductive justice requires a state that provides a network of 
support for the processes of reproduction: protection against rape 
and access to affordable and effective birth control, healthcare, 
including but not limited to abortion services, prenatal care, support 
in childbirth and postpartum, support for breastfeeding mothers, 
early childcare for infants and toddlers, income support for parents 
who stay home to care for young babies, and high quality public 
education for school age children.47 

 

 
43 Lauren Paulk explains that “rights without access mean very little to a majority of the population.” 
Lauren B. Paulk, Embryonic Personhood: Implications for Assisted Reproductive Technology in 
International Human Rights Law, 22 AM. U. J. GENDER SOC. POL’Y & L. 781, 790 (2014). 
 
44 Lynne Henderson, Flexible Feminism and Reproductive Justice: An Essay in Honor of Ann Scales, 
91 DENV. U. L. REV. 141, 143 (2013) (explaining that RJ escapes this frame). 
 
45 Not only is abortion a negative rather than positive right in our Supreme Court jurisprudence, but the 
scope of reproductive rights is much broader than just abortion. 
 
46 Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 
YALE L.J. 1394, 1432 (2009) (“The reproductive justice that might be achieved through these 
coalitions—that is, achieved through ordinary modes of political persuasion—might prove more 
enduring than what we have garnered to date from the Court.”). 
 
47 Id. at 1425. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     125 

 

 

As If/When/How explains, “Reproductive justice will exist when all people can 
exercise the rights and access the resources they need to thrive and to decide if, when, 
and how to create and sustain their families with dignity, free from discrimination, 
coercion, or violence.”48 
 

C. Applying Feminist Frames to IVF 
 

Postmodern feminism and reproductive justice offer overlapping but distinct 
insights, and this section considers their application to IVF and related reproductive 
technologies. Whereas our laws and doctrine are composed of seemingly stable 
binary categories, our reproductive endeavors—especially those involving IVF—are 
infused with complexity and indeterminacy. While reproduction always entails some 
uncertainty, IVF increases that uncertainty and requires patients to make complicated 
decisions based on incomplete information. This section applies the feminist frames 
discussed in the previous two sections to the context of IVF and related reproductive 
technologies. It sits in line with the work of scholars like Professor Kimberly 
Mutcherson, who teaches us that thinking about justice is crucial in thinking about 
reproductive technologies, and that promoting justice requires attending to “lived 
complexity.”49 

 
Postmodern feminist techniques, as previously mentioned, can be used to 

dismantle not only categories relating to gender and sexuality but also categories 
relating directly to reproduction. While modernism might lead us to describe 
reproductive potential as limited to either fertility or sterility, postmodernism 
reminds us of the in-between state of infertility and the artificial nature of all three 
categories. First, because fertility is the default until there is a different diagnosis, 
some people are labeled fertile who may actually be either infertile or sterile. Second, 
some people diagnosed with “unexplained infertility” conceive without treatment,50 
suggesting they may have been merely subfertile or just had “seriously bad luck.”51 
Finally, sterility may be the most stable of the three categories, but it can be hard to 

 
48 IF/WHEN/HOW, supra note 42. 
 
49 Kimberly M. Mutcherson, Transformative Reproduction, 16 J. GENDER RACE & JUST. 187, 195 
(2013). 
 
50 Rachel Gurevich, Understanding the Diagnosis of Unexplained Infertility, VERYWELL FAM. (Mar. 4, 
2021), https://www.verywellfamily.com/explanations-for-unexplained-infertility-4081776 
[https://perma.cc/WW8S-HD7E]. 
 
51 Id. 



126                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

say whether someone is permanently unable to establish a pregnancy. Some 
people—including one of the parties from a case discussed in Part II—may be sterile 
or may be technically infertile but have a less than one percent chance of establishing 
a pregnancy.52 These examples reveal that reproductive potential is really a spectrum 
rather than a set of distinct categories. It is fluid over time, such that people move 
around on the spectrum. And because even a fertile couple has only a 20–30% chance 
per cycle of conceiving, there is a lot of luck involved.53 
 

Postmodern feminist techniques can be used to dismantle categories relating not 
only to reproductive potential but also to pregnancy intentions. While modernist 
impulses might cause us to describe pregnancy intentions as either procreative or 
non-procreative, postmodern insights remind us that our desires are in fact much 
more complex. As research shows, “pregnancy intentions are complex and change 
over time.”54 People engaged in IVF may be categorized as planning a pregnancy, 
but in fact it is much more complicated. Anyone involved in IVF has made many 
decisions over the course of many months about how, when, and whether to proceed 
with treatment. And if they do proceed and establish a pregnancy, they will make 
many more decisions. As previously mentioned, a woman who used IVF to achieve 
a much-desired pregnancy might, if faced with a devastating diagnosis, choose 
abortion. To describe her simply as having chosen “to procreate” would be as 
inaccurate as to describe her as having chosen “to avoid procreation.” Both 
reproductive potential and pregnancy intentions are, then, fluid, complex, and 
indeterminate. Part III will show that these same principles can be extended to 
critique the binary view of reproductive rights that is so often embraced by courts 
deciding frozen embryo disputes. 

 
Reproductive justice, like postmodern feminism, can be applied to IVF and 

related reproductive technologies. The animating principles of the RJ movement are 
capacious enough to encompass an affirmative right to access IVF. The movement 
thinks beyond binary rights options, framed in the negative as rights against 

 
52 Terrell v. Torres, 438 P.3d 681, 692 (Ariz. Ct. App. 2019), vacated in part, 456 P.3d 13 (2020). 
 
53 A Patient’s Guide to ART, General Information, Questions and Answers, SOC’Y FOR ASSISTED 
REPRODUCTIVE TECH., https://www.sart.org/patients/a-patients-guide-to-assisted-reproductive-
technology/general-information/questions-and-answers/ [https://perma.cc/448H-WKVG] [hereinafter 
SOC’Y FOR ASSISTED REPRODUCTIVE TECH., ART Q&A]; Gurevich, supra note 50. 
 
54 Patient Pregnancy Intentions: Are Providers Asking?, PLANNED PARENTHOOD (2018), 
https://www.plannedparenthood.org/uploads/filer_public/bb/5c/bb5ce0ac-b456-41b3-b0bf-
7cb5eaa82d71/patient_pregnancy_intentions_november_2018.pdf [https://perma.cc/KF99-D7MK]. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     127 

 

 

government intrusion, and imagines a system that recognizes positive rights to 
government assistance. Lauren Paulk, a member of the Research Council at 
If/When/How: Lawyering for Reproductive Justice, writes, “[U]nder RJ principles, 
all people who want to use IVF as a method of procreation . . . should be allowed 
access, including funding as necessary, to IVF treatments.”55 As Paulk explains, “RJ 
requires that the resources necessary for individuals to experience full reproductive 
autonomy and dignity are available, and this includes access to IVF and other ART 
[(“assisted reproductive technology”)].”56 The revolutionary nature of this statement 
should be appreciated: Because IVF and many related procedures are extremely 
costly (IVF is around $20,000 per cycle) and often not covered by health insurance, 
they are not widely accessible.57 Most often, they are used by married white women 
with high incomes.58 Removing the financial barrier such that this treatment is 
accessible to all who wish to use it would, like many of RJ’s aims, create a sea-
change in existing doctrine. 

 
Professor Kimberly Mutcherson, explaining that “justice is the most appropriate 

lens through which to consider the relationship between ART and the law,”59 
explores how differences based on race, class, gender, sexual orientation, age, 
disability, and other traits are relevant in the context of reproductive technology and 
have implications for “the social meaning of an act of procreation.”60 In her article 
titled Transformative Reproduction, Professor Mutcherson emphasizes the 
importance of context in reproduction: She reminds us to attend to “women’s lived 
experiences and the realities of reproductive hierarchies.”61 And she explains, “The 

 
55 Paulk, supra note 43, at 791. 
 
56 Id. 
 
57 Elissa Strauss, 40 Years Later, Why Is IVF Still Not Covered by Insurance? Economics, Ignorance, 
and Sexism, CNN HEALTH (July 25, 2018), https://www.cnn.com/2018/07/25/health/ivf-insurance-
parenting-strauss/index.html [https://perma.cc/3Y5W-BMBZ]. 
 
58 Elpida Velmahos, Fertile Ground for Change: Infertility, Employee-Based Health Insurance, and an 
Unprotected Fundamental Right, 17 J. HEALTH & BIOMEDICAL L. 267, 291 (2021). See also Strauss, 
supra note 57. 
 
59 Mutcherson, supra note 49, at 190. Professor Mutcherson’s work explains why it is so important to 
move beyond a rights framing to a justice framing. This does not, however, mean rejecting rights—
rather, it simply entails recognizing that they are not “a singular end goal.” Id. at 194. 
 
60 Mutcherson, supra note 49, at 198, 200. 
 
61 Id. at 196. 



128                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

time period, place, and circumstances under which individuals initiate and pursue a 
procreative act matters for those doing the procreating and for the child or children 
produced from that act.”62 One of the core insights of Transformative Reproduction 
is that “the landscape of ART is highly complicated[, and a]ny attempts to strip it of 
this inherent complication, however useful, are simply unrealistic.”63 While Part II 
will review the ways legal thinking about frozen embryos is overly simplistic, Part 
III will explore the ways RJ’s reimagining of rights would change the landscape of 
frozen embryo disputes. 
 

II. Binary Thinking in Frozen Embryo Disputes 
 

When divorcing or otherwise separating couples disagree about the disposition 
of jointly created frozen embryos, most courts seek to enforce any contracts the 
parties may have entered; but, if there are none or if they do not resolve the 
disagreement, the parties’ interests are balanced to determine the proper outcome. 
The balancing process is most often guided by a standard articulated by the Supreme 
Court of Tennessee in its 1992 decision of Davis v. Davis. There, the court stated, 
“Ordinarily, the party wishing to avoid procreation should prevail, assuming that the 
other party has a reasonable possibility of achieving parenthood by means other than 
use of the preembryos in question.”64 In application, this has often meant that the 
party who wants to procreate loses, unless she is definitively sterile and thus unable 
to become a genetic parent without the embryos. Some courts have imposed the 
additional requirement that, to access the embryos, the party who wants to procreate 
must be unable or unlikely to become an adoptive parent. The balancing approach, 
in other words, places great weight on the court’s ability to assess a party’s chances 
at achieving parenthood. Yet even if the court believes a party cannot achieve 
parenthood without the embryos, that party may not prevail—however, her argument 
will at least be considered. 

 
Section II.A focuses on the subset of frozen embryo disputes in which courts, 

for whatever reason, are unable to resolve the parties’ disagreement based on contract 
principles and therefore turn to interest balancing. Taken together, these cases 
illustrate two points: First, courts often rest their decisions on flawed and incomplete 
assessments about whether a party is fertile or sterile, with unequivocally sterile 

 
62 Id. at 198–99. 
 
63 Id. at 232. 
 
64 Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     129 

 

 

parties having the best chance at accessing the contested embryos. This ignores the 
reality that infertile and even fertile parties may also be unable to achieve 
parenthood. Second, courts view their task as mediating between two parties 
asserting rights that are locked in a binary opposition. The party wishing to use the 
embryos is described as asserting the right to procreate, and the party wishing to 
prevent their use is described as asserting the right to avoid procreation. This framing 
ignores the nuance and complexity of the parties’ intentions, which cannot 
reasonably be reduced to a desire to procreate or not procreate. 

 
Section II.B surveys the Federal Supreme Court doctrine that provides the 

backdrop for virtually every state court case discussed in Section II.A. The impulse 
to view procreative autonomy as comprised of the right to procreate and the opposing 
right to avoid procreation derives from the fact that the Federal Supreme Court cases 
on reproductive rights inhabit two separate doctrinal spheres. First, there is the right 
to procreate, which derives primarily from Skinner v. Oklahoma, a case decided over 
seventy-five years ago that protected a “habitual criminal” against forced 
sterilization. Second, there is the right to avoid procreation, which derives from the 
long line of cases protecting access to contraception and (with some notable 
restrictions) abortion. While a few of the cases on the right to avoid procreation speak 
more broadly about protecting the “decision whether to bear or beget a child,”65 this 
aspect has been largely ignored, to the detriment of reproductive rights. 

 
A. Binary Thinking in State Courts 

 
This section surveys some of the state court decisions that engage in interest 

balancing to resolve frozen embryo disputes. It is divided into three subsections: The 
first describes the seminal case of Davis v. Davis, decided by the Tennessee Supreme 
Court in 1992.66 The second describes post-Davis cases where courts have balanced 
the parties’ interests and ruled against using contested embryos. The third describes 
post-Davis cases where courts have balanced the parties’ interests and ruled in favor 
of using the embryos. These cases collectively reveal a doctrine unable to grapple 
with the complexity and indeterminacy of reproductive potential, and unwilling to 
imagine nondual rights claims. 

 

 
65 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 
 
66 Davis, 842 S.W.2d at 588.  



130                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

1. Davis v. Davis 
 

Davis v. Davis, decided by the Tennessee Supreme Court in 1992, is the seminal 
case on frozen embryo disputes.67 There, a husband and wife—who had endured five 
tubal pregnancies, a failed adoption, and six rounds of IVF—battled over seven 
frozen embryos in the context of their divorce.68 Initially, the wife wanted to use the 
embryos herself, but by the time the case reached the state’s high court she wished 
to donate them to another couple.69 The husband wanted the embryos discarded 
based on his view, which developed as the result of traumatic experiences in his own 
childhood, that children should be raised within intact families.70 Had the parties 
entered a contract dictating the embryos’ disposition in the event of divorce, the court 
would have enforced it, unless both parties had agreed to its modification.71 Because 
they had not entered any such contract,72 however, the court cataloged a variety of 
possible approaches, including continued cryopreservation unless and until the 
parties agreed otherwise.73 It rejected this approach because, given the current 
technology, the embryos might not remain viable longer than a couple of years, 
which would effectively give the party preferring non-procreation veto power.74 The 
court ultimately decided to balance the parties’ interests.75 

 
As a preface to the balancing process, the court discussed “the right of 

procreation,” which it described as “a vital part of [the] right to privacy.”76 After 
reviewing Meyer, Buck, Skinner, Eisenstadt, Roe, and other cases (discussed in 

 
67 Id. 
 
68 Id. at 589, 591–92. 
 
69 Id. at 590. 
 
70 Id. 
 
71 Id. at 597. 
 
72 Id. at 590. 
 
73 Id. at 590–91, 598. 
 
74 Id. at 598. The court placed the viability of the embryos at somewhere between two and ten years. Id. 
 
75 Id. at 590–91, 603–04. 
 
76 Id. at 600. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     131 

 

 

Section II.B, infra),77 the court declared, “[W]hatever its ultimate constitutional 
boundaries, the right of procreational autonomy is composed of two rights of equal 
significance—the right to procreate and the right to avoid procreation.”78 Observing 
that “[n]one of the concerns about a woman’s bodily integrity that have previously 
precluded men from controlling abortion decisions is applicable here,” the court 
concluded that the wife and husband were, in the unique context of frozen embryo 
disputes, “entirely equivalent gamete-providers.”79 The court further observed that 
the right to make decisions about the embryos “rests in the gamete-providers alone,” 
rather than (for example) with the state.80 Finally, the court observed that while 
previous cases “have dealt with the child-bearing and child-rearing aspects of 
parenthood,” this case differs in that it deals with “the question of genetic 
parenthood.”81 

 
In balancing the parties’ interests, the court considered the burdens that an 

undesired decision would impose on each party.82 For the husband, who wanted the 
embryos discarded, an undesired decision would force him into “unwanted 
parenthood,” which could have “financial and psychological consequences.”83 For 
the wife, who wanted the embryos donated to another couple, an undesired decision 
would impose the “emotional burden” of “knowing that the lengthy IVF procedures 
she underwent were futile, and that the preembryos to which she contributed genetic 
material would never become children.”84 The court concluded that the husband’s 
interest in avoiding parenthood outweighed the wife’s interest in donating the 
embryos.85 It added, however, that “[t]he case would be closer if [the wife] were 

 
77 Id. at 599–601. See also infra Section II.B for a description of these cases. 
 
78 Id. at 601. 
 
79 Id. 
 
80 Id. at 602. 
 
81 Id. at 602–03. 
 
82 Id. at 603. 
 
83 Id. 
 
84 Id. at 604. 
 
85 Id. 



132                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

seeking to use the preembryos herself, but only if she could not achieve parenthood 
by any other reasonable means”—including adoption.86 

 
The opinion ends by articulating a process for resolving future cases: agreements 

between the parties are binding, but where there is no agreement, the court should 
balance the parties’ interests.87 In balancing the interests: 

 
Ordinarily, the party wishing to avoid procreation should prevail, 
assuming that the other party has a reasonable possibility of 
achieving parenthood by means other than use of the preembryos in 
question. If no other reasonable alternatives exist, then the argument 
in favor of using the preembryos to achieve pregnancy should be 
considered.88 

 
This passage clearly favors non-procreation. It begins from the premise that the party 
wishing to avoid procreation wins. Even when the other party has no “reasonable 
alternatives” to achieve parenthood, she acquires no more than the opportunity for 
her argument to be “considered.” This passage from Davis is almost invariably 
quoted when subsequent courts encounter similar disputes. While it does offer a 
thoughtful treatment of the issues, it is remarkable that courts have relied so heavily 
on these words rather than furthering the conversation with their own independent 
analyses. 
 

Davis reflects binary thinking about fertility status, pregnancy intentions, and 
reproductive rights, and misses at least three important nuances: First, it overlooks 
the difficulty of assessing fertility status (i.e., reproductive potential). Determining 
whether a person has a “reasonable possibility of achieving parenthood” is rarely a 
simple task. Unless a party is definitively sterile, describing her chances of achieving 
either genetic or adoptive parenthood is difficult if not impossible. This query about 
“reasonable possibility”—at least as operationalized in Davis—invites a 
categorization in which if a party is not definitively sterile, she will be viewed as 
having a reasonable possibility of achieving parenthood (i.e., as fertile). Second, 
Davis oversimplifies pregnancy intentions by assuming parties either want to 

 
86 Id. 
 
87 Id. 
 
88 Id. The quote continues, “However, if the party seeking control of the preembryos intends merely to 
donate them to another couple, the objecting party obviously has the greater interest and should prevail.” 
Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     133 

 

 

become parents or not become parents. For many parties, however, the question is 
not just whether to become a parent, but when, with whom, of how many children, 
via genetic versus adoptive connections, and so on. Third and finally, Davis (in 
keeping with Federal Supreme Court doctrine) limits rights claims to procreation or 
avoidance of procreation, when in reality parties’ desires are, as previously 
discussed, much more complicated. 

 
2. Post-Davis Cases Barring Embryo Use 

 
Davis has been tremendously influential. Courts deciding cases in its wake are 

generally described as having adopted one of three approaches commonly referred 
to as the contract approach, the balancing approach, and the contemporaneous 
mutual consent approach.89 All three, to varying degrees, have roots in Davis. First, 
the contract approach honors agreements regarding the disposition of frozen 
embryos, so long as they do not result in public policy violations.90 Davis, as 
previously discussed, would have enforced a contract had one existed.91 Second, the 
balancing approach similarly honors contracts regarding the disposition of frozen 
embryos, but where there is no contract or the contract does not speak to the existing 
circumstances, the parties’ interests are balanced.92 Davis, of course, employed the 
balancing approach.93 Third, the contemporaneous mutual consent approach 
disregards contracts and directs that embryos only be used, donated, or destroyed 
with the present consent of both parties.94 Although Davis differed in that it would 
have honored a contract had one existed, it would have allowed a modification to 
that contract had both parties agreed.95 

 
89 Szafranski v. Dunston, 993 N.E.2d 502, 506 (2013). 
 
90 Id. 
 
91 Davis, 842 S.W.2d at 597. 
 
92 Szafranski, 993 N.E.2d at 512 (“Under this approach, courts enforce contracts between the parties, at 
least to a point, then balance their interests in the absence of an agreement.”). 
 
93 Davis, 842 S.W.2d at 590–91, 603–04. 
 
94 In re Marriage of Witten, 672 N.W.2d 768, 778 (2003) (citing Carl H. Coleman, Procreative Liberty 
and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MINN. 
L. REV. 55, 110–12 (1999)). 
 
95 Davis, 842 S.W.2d at 597 (“Providing that the initial agreements may later be modified by agreement 
will, we think, protect the parties against some of the risks they face in this regard. But, in the absence 
of such agreed modification, we conclude that their prior agreements should be considered binding.”). 



134                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

 Inasmuch as these three approaches are somewhat overlapping, it may be 
useful to reduce them to a single analytical process that explains how a judge faced 
with an embryo dispute would ordinarily proceed. First, she would assess whether 
there is a contract that speaks to the existing circumstances. If there is, she would ask 
whether it is against public policy. In a contemporaneous mutual consent state, she 
would always answer in the affirmative, disregard the contract, and (absent mutual 
consent to take other action) continue cryopreservation. If, however, the contract was 
not against public policy, the judge would order its enforcement—which could result 
in use, discard, or donation of the embryos. Second, if no contract spoke to the 
existing circumstances, the judge would, depending on her jurisdiction, either 
balance the parties’ interests according to the Davis standard or ask whether there 
was contemporaneous mutual consent to a given action. Notably, except in situations 
where a court is enforcing an existing contract, the result will often be non-
procreation. If a balancing of interests follows Davis, it begins from the premise that 
“[o]rdinarily, the party wishing to avoid procreation should prevail[.]”96 And if 
contemporaneous mutual consent is required, procreation can only occur by 
agreement—but, as many have pointed out, if the parties agreed, they would not be 
litigating.97 

 
This analytical process illustrates, among other things, that the cases do not really 

represent three distinct approaches. There are, at most, two—the contract/balancing 
approach and the contemporaneous mutual consent approach. In terms of popularity, 
the former far outstrips the latter, which has been expressly adopted only by the state 
of Iowa.98 The remainder of this section focuses on decisions that employ interest 
balancing or search for mutual consent, and that represent victories for the party 
wishing to avoid procreation. In chronological order, it surveys six cases, which 
collectively illustrate several points: First, Davis has been deeply influential in 
creating a broad presumption against embryo use, qualified by a narrow exception 
for parties lacking a reasonable path to parenthood without the embryos. The 
exception is “narrow” in that it seems to cover only parties who are clearly sterile, 
and thus discounts the challenges of infertility. This evinces binary thinking about 
fertility and sterility and the effective erasure of infertility. However, some cases 

 
96 Id. at 604. 
 
97 The Superior Court of Pennsylvania, for example, characterized the contemporaneous mutual consent 
approach as “totally unrealistic,” saying, “If the parties could reach an agreement, they would not be in 
court.” Reber v. Reiss, 42 A.3d 1131, 1135 n.5 (2012). 
 
98 Szafranski, 993 N.E.2d at 511 (reviewing all three approaches and noting which states have adopted 
them). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     135 

 

 

hold that not even clearly sterile parties fall within the exception if they are able to 
pursue adoption.99 Second, these cases illustrate the embrace of binary thinking about 
the right to procreate and the right to avoid procreation. The parties, and often the 
courts as well, frame the rights at issue as binary and opposite. Third, these cases 
suggest that the right to procreate is more accessible to parties who are not already 
parents. Courts often (but not always100) consider in interest balancing whether a 
party already has children. Fourth and finally, these cases show that courts are deeply 
concerned about not “forcing” parties to procreate, even when those parties have 
willingly engaged in IVF for the purpose of procreation. This commitment to 
allowing certain parties to control the context of procreation—whether, when, and 
how they will have children—might be contrasted with other areas of doctrine. 
 

a. A.Z. v. B.Z. 
 

In the 2000 decision of A.Z. v. B.Z., the Supreme Judicial Court of Massachusetts 
invoked a public policy against “forced procreation” in ruling against a wife who 
wanted to use frozen embryos she and her husband had jointly created during their 
marriage.101 From early on, they had experienced fertility issues.102 The wife had 
suffered two ectopic pregnancies, each of which required the removal of one of her 

 
99 See, e.g., Terrell v. Torres, 438 P.3d 681, 692 (2019) (vacated in part by 456 P.3d 13 (2020)). See 
infra, text accompanying note 258 (describing the family court opinion). The intermediate appellate 
court (whose opinion was vacated on appeal) in Terrell stated: 
 

The trial court erred by improperly concluding Torres’ ‘less than one percent’ 
chance of becoming pregnant through normal means and the remote possibility of 
adoption or insemination with a donor embryo negated her claims to these embryos. 
The trial court overstated Torres’ ability to become a parent through means other 
than the use of the disputed embryos. Moreover, the court gave insufficient weight 
to Torres’ desire to have a biologically-related child—which was the entire purpose 
of engaging in IVF in the first place. 

 
Id. at 692. See also J.B. v. M.B., 783 A.2d 707, 720 (2001) (“We express no opinion in respect of a 
case in which a party who has become infertile seeks use of stored preembryos against the wishes of 
his or her partner, noting only that the possibility of adoption also may be a consideration, among others, 
in the court’s assessment.”). 
 
100 In re Marriage of Rooks, 429 P.3d 579, 581 (Colo. 2018) (“[T]he sheer number of a party’s existing 
children, standing alone, [shall not] be a reason to preclude implantation of the pre-embryos.”). 
 
101 A.Z. v. B.Z., 431 Mass. 150, 160 (2000). 
 
102 Id. at 151–52. 



136                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

fallopian tubes.103 Subsequently, three years of IVF treatments resulted in the birth 
of twin daughters as well as two vials of frozen embryos.104 When the twins were 
approximately three years old, without notifying her husband, the wife had one of 
the vials thawed and one of the embryos transferred.105 No pregnancy resulted, and 
the parties’ relationship “deteriorated” to the point that the wife sought and received 
a protective order against the husband and the husband filed for divorce.106 At 
divorce, the wife wanted to use the remaining vial and the husband wanted to enjoin 
her.107 While their consent forms indicated that upon separation, the embryos would 
be returned to the wife “for implant,” the probate court ruled for the husband.108 It 
held that significant changes in circumstances (including both the birth of the twins 
and the deterioration of the parties’ relationship) rendered the form unenforceable, 
such that the parties’ interests should be balanced.109 Upon balancing, it ruled that 
“the husband’s interest in avoiding procreation outweighed the wife’s interest in 
having additional children.”110 

 
On appeal, the high court expressed skepticism that the form actually represented 

the true intent of the parties, but added the following: “[E]ven had the husband and 
the wife entered into an unambiguous agreement between themselves regarding the 
disposition of the frozen preembryos, [as a matter of public policy,] we would not 
enforce an agreement that would compel one donor to become a parent against his 
or her will.”111 The AZ court noted it did not “necessarily subscribe” to the Davis 
court’s views,112 but its strong statement against the use of frozen embryos whenever 
parties disagree—even if they have entered a contract otherwise—goes at least as far 

 
103 Id. at 152. 
 
104 Id. at 152–53. 
 
105 Id. at 153. 
 
106 Id. 
 
107 Id. 
 
108 Id. at 154–55. 
 
109 Id. at 155. 
 
110 Id. 
 
111 Id. at 159–60. 
 
112 Id. at 157, n.19. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     137 

 

 

as Davis’s presumption against embryo use when interest balancing. It is also notable 
that the parties in AZ were already parents with twin daughters. Thus, the wife had 
already exercised her right to procreate, and at least at the probate court level her 
right to have “additional children” was weaker than the husband’s right to “avoid[] 
procreation.”113 This case, like some others, gives the impression that the right to 
procreate diminishes with use. 

 
b. J.B. v. M.B. 

 
In the 2001 decision of J.B. v. M.B.,114 Davis’s influence is even more apparent. 

There, the Supreme Court of New Jersey balanced the parties’ interests and ruled in 
favor of a wife who wanted jointly created embryos discarded and against her 
husband who wanted them donated to another couple.115 Following a miscarriage, 
the wife discovered she had fertility issues and the couple underwent IVF.116 The 
procedure resulted in the birth of a daughter as well as the creation of seven frozen 
embryos.117 Before their daughter was a year old, however, the couple separated.118 
While the wife wanted the embryos discarded, the husband wanted them either 
“implanted or donated to other infertile couples” on the basis of his religious 
convictions.119 Their consent forms offered little guidance, indicating that upon 
divorce their embryos would be “relinquished to the IVF Program,” unless a court 
ruled otherwise.120 The trial court—noting that the husband was already a parent, 

 
113 Id. at 155. 
 
114 J.B. v. M.B., 783 A.2d 707 (N.J. 2001). 
 
115 The opinion is somewhat unclear as to the husband’s specific desires. It quotes from his 
counterclaim, in which he asked for the embryos to be “implanted or donated to other infertile couples.” 
Id. at 710. The “implanted” language presumably refers to them being transferred to the wife, which 
was not a possibility given her opposition. While the high court mentioned the possibility of transferring 
the embryos to a surrogate, it did not indicate that this was something the husband proposed or desired. 
Id. at 717. I have therefore accepted the trial court’s characterization that the husband wanted the 
embryos “merely to donate them to another couple.” Id. at 711. 
 
116 Id. at 709. 
 
117 Id. at 710. 
 
118 Id. 
 
119 Id. at 710, 712. 
 
120 Id. at 713. 



138                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

was fertile and so could have additional children, and wanted the embryos to be used 
by another couple rather than himself—ruled for the wife and ordered the embryos 
discarded.121 The intermediate court affirmed, observing that donating the embryos 
would violate the wife’s right not to procreate, whereas discarding them would not 
violate the husband’s right to procreate.122 The intermediate court, however, formally 
decided the case not on these constitutional grounds but rather on the public policy 
ground that contracts to procreate are unenforceable.123 

 
On appeal, the high court began its analysis with the consent form, which it held 

did not “manifest a clear intent” regarding what should happen to the embryos upon 
divorce.124 Even if the form had manifested a clear intent, however, the court stated 
it would remain “subject to the right of either party to change his or her mind[.]”125 
The court then balanced the parties’ interests. Reciting Davis’s statement that 
“[o]rdinarily, the party wishing to avoid procreation should prevail,” it emphasized 
that the wife could not be “force[d] . . . to become a biological parent[.]”126 In ruling 
for the wife, the court reiterated that the husband “is a father and is capable of 
fathering additional children.”127 Because the husband did not seem to wish to use 
the embryos himself (e.g., with the assistance of a surrogate), but rather wanted them 
donated to another infertile couple, this case does not on its facts show bias against 
a party wishing to procreate. Nevertheless, its dicta may suggest such a bias. The 
court stated that in a case where it was called upon to balance the interests of a party 
who was infertile and wished to use jointly created embryos against the interests of 
a party who wanted the embryos discarded, the court could consider whether the 
former party could become a parent through adoption.128 While it did not elaborate, 
the chance of a New Jersey court ruling in favor of a party wishing to use embryos 
appears small. 

 
121 Id. at 710, 712, 720. 
 
122 Id. at 711. 
 
123 Id. at 711–12. 
 
124 Id. at 713. 
 
125 Id. at 719. 
 
126 Id. at 716–17. 
 
127 Id. at 719–20. 
 
128 Id. at 720. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     139 

 

 

c. Marriage of Witten 
 

In the 2003 decision of Marriage of Witten, the Supreme Court of Iowa applied 
the contemporaneous mutual consent approach and ruled against a wife who wanted 
to use frozen embryos she and her husband had jointly created during their 
marriage.129 Because of the wife’s fertility issues, the couple underwent IVF.130 At 
the time of their divorce, after several failed embryo transfers, they had no children 
but seventeen embryos remained.131 The wife wished to use the embryos to become 
a parent; the husband did not want her to use them, but would allow their donation 
to another couple.132 The high court held that public policy precluded the 
enforcement of a contract regarding reproduction when one of the parties had 
changed their mind.133 It further held that, rather than substituting itself as the 
decision-maker (which would occur if it adopted the balancing approach), the parties 
ought to retain control.134 The court therefore adopted the contemporaneous mutual 
consent approach and ordered that the embryos be stored indefinitely such that 
neither party could “use or dispose of [them] without the consent of the other[.]”135 
As previously discussed, this approach effectively prevents procreation whenever 
there is a dispute between the parties. 

 
d. Findley v. Lee 

 
In the 2016 case of Findley v. Lee, the Superior Court of California ruled against 

a wife (Lee) who wished to use embryos to procreate and in favor of her husband 
(Findley) who wanted them discarded.136 While the court’s decision rested on 
contract law, it engaged in an extensive discussion of balancing and concluded that 

 
129 Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). 
 
130 Id. at 772. 
 
131 Id. 
 
132 Id. at 772–73. 
 
133 Id. at 781–82. 
 
134 Id. at 783. 
 
135 Id. at 772, 783. 
 
136 Findley v. Lee, No. FDI-13-780539, 2016 WL 270083, at *1–2 (Cal. Super. Jan. 11, 2016). 



140                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

it would reach the same result under either approach.137 Findley and Lee, who had 
known each other for years, became romantically involved in early 2010 when Lee 
was forty-one years old, and they made plans to marry in September.138 During the 
summer of 2010 (before their marriage), some evidence showed they were trying to 
conceive.139 Also that summer, Lee was diagnosed with cancer.140 They married in 
September as planned.141 They then underwent IVF—signing a consent form in 
which they agreed that in the event of divorce the embryos would be thawed and 
discarded—and were able to create five embryos.142 Due to Lee’s cancer treatment, 
they froze all five embryos.143 Three years into their marriage, when Lee was forty-
four, Findley filed for divorce and the embryo dispute arose.144 

 
While the court ruled based on the consent form that the embryos should be 

thawed and discarded, it discussed the interest balancing approach and concluded 
that it would lead to the same result. Weighing against Lee using the embryos were 
the following four factors: First, Lee had “failed to preserve her fertility between 
ages forty-three and forty-five,”145 though she was “a Harvard educated physician 
who worked infertility clinics [sic].”146 The court emphasized Lee’s medical 
knowledge, noting in an earlier part of the opinion that she had at one point 
considered freezing her eggs.147 It also found it worth mentioning early in the opinion 
that she had previously terminated four pregnancies, including one at age thirty-

 
137 Id. at 2, 39–40. 
 
138 Id. at 4. The dates are slightly unclear, but Lee was around forty-one years old. 
 
139 Id. at 4. 
 
140 Id. at 5. She pursued treatments other than chemotherapy or radiation. Id. This is relevant because 
chemotherapy and radiation could impact fertility. 
 
141 Id. 
 
142 Id. at 1. 
 
143 Id. at 6, 10. 
 
144 Id. at 10, 33. 
 
145 Id. at 33. 
 
146 Id. at 3, 34. 
 
147 Id. at 4.  



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     141 

 

 

seven.148 Second, Lee “ha[d] not established that she [was] absolutely infertile at age 
forty-six.”149 At trial, both parties had their own fertility experts, with Lee’s 
testifying that she had a 0.03% chance of fertility (based on her age of forty-six) and 
Findley’s testifying that Lee had a 0 to 5% chance of fertility.150 Third, Findley had 
concerns about co-parenting with Lee, although she had offered not to seek child 
support.151 The court noted that while his concerns were valid, they did not 
“dramatically weigh in his favor.”152 Finally, the court found Findley’s testimony 
more credible than Lee’s.153 The court ultimately concluded that the balance weighed 
against using the embryos.154  

 
Davis’s influence on Findley is apparent. Both the breadth of the presumption 

against using embryos and the narrowness of the exception for parties without a 
reasonable path to parenthood without them are evident. The Findley court seemed 
to assume that a party who was not definitively sterile was effectively fertile.155 Even 
though Lee was childless and highly unlikely to achieve genetic parenthood without 
the embryos, she did not prevail. Indeed, the fact that she was “unable to establish 
that she [was] now absolutely infertile”156 seemed to weigh heavily against her. 
While the court did not discuss the possibility of Lee adopting a child, she likely 
would not have been a strong candidate for adoption due to her advanced age and 

 
148 Id. at 4. Her reason for terminating the earlier pregnancies was that “she had not yet found the right 
person with whom she wanted to have a child.” Id. 
 
149 Id. at 34–35. 
 
150 Id. The court specifically noted that Lee’s fertility expert made the assessment based on her age and 
not on her cancer treatment. Id. at 34. 
 
151 Id. at 36. 
 
152 Id. at 37. 
 
153 Id. at 37–39. 
 
154 Id. at 40. 
 
155 To reiterate, Davis stated that the party wishing to avoid procreation should ordinarily prevail, but 
that if the other party lacked a reasonable chance at achieving parenthood without the embryos, her 
argument to use them should be considered. 
 
156 Findley, 2016 WL 270083, at *35. 



142                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

cancer diagnosis.157 In terms of the rights at issue, the parties viewed them in the 
usual binary terms: Lee invoked her right to procreate, and Findley invoked his right 
not to procreate. The court, however, held that both Lee and Findley had waived any 
constitutional rights related to procreation when they signed the consent form.158 
Perhaps anticipating that the parties might argue that the consent form, when 
judicially enforced, became state action, the court summarily declared that there was 
“no state action at issue.”159 

 
e. Marriage of Guardado 

 
In the 2018 decision of Marriage of Guardado, the Court of Appeals of 

Washington awarded a husband and wife joint possession of an embryo created 
during their marriage, thereby effectively preventing its use by the husband.160 The 
parties had pursued IVF at least in part because the husband had a vasectomy before 
their marriage.161 Through IVF, they had one child and one frozen embryo 
remaining.162 While they had signed a consent form, it stated only that, if they 
divorced, the court would determine the embryo’s disposition.163 At the time of 
divorce, the wife wanted the embryo destroyed, whereas the husband (at least 
according to the wife’s testimony) wanted to use it himself with the assistance of a 
surrogate.164 Because the consent form provided no specific guidance, the trial court 
balanced the parties’ interests.165 It awarded the embryo to both parties jointly, but 
required the husband (who sought to prevent its destruction) to pay the cost of 

 
157 See, e.g., Reber v. Reiss, 42 A.3d 1131, 1139 (Pa. Super. Ct. 2012), appeal denied, 62 A.3d 380 (Pa. 
2012) (noting that a similarly situated party would not be a good candidate for adoption). 
 
158 Findley, 2016 WL 270083, at *36. 
 
159 Id. 
 
160 In re Marriage of Guardado, 2 Wash. App. 2d 1025, 1 (Ct. App. 2018), appeal denied, 421 P.3d 462 
(Wash. 2018) (unpublished opinion). 
 
161 Id. at 6. 
 
162 Id. at 1. 
 
163 Id. 
 
164 Id. at 2. 
 
165 Id. at 6. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     143 

 

 

continued storage.166 It emphasized that the wife could not be forced to procreate.167 
In affirming, the intermediate court reiterated that the wife could not be forced to 
procreate, quoting Davis’s statement that “[o]rdinarily, the party wishing to avoid 
procreation should prevail.”168 It did not discuss the husband’s prospects for 
procreation without the embryo in question. This decision, like those previously 
discussed, interprets Davis’s initial presumption broadly while seemingly neglecting 
its potential exception. Perhaps it made a difference that the parties had already had 
a child, and the husband had already exercised his right to procreate. 

 
f. McQueen v. Gadberry 

 
In the 2016 decision of McQueen v. Gadberry, the Missouri Court of Appeals 

awarded contested embryos to a husband and wife jointly, thereby precluding their 
use by the wife.169 The wife did not appear to have any fertility issues and had, after 
separating from her husband, given birth to another (her third) child as a result of 
sexual intercourse with another man.170 Even under a broad reading of Davis’s 
exception—wherein existing children did not count against the party wishing to 
procreate, complete sterility of the party wishing to procreate was not required, and 
adoption was not assumed to be a universally suitable alternative to genetic 
parenthood—the wife in this case would have a difficult argument: Davis asks 
whether the party wishing to use the embryos has a reasonable path to parenthood 
without them, and here the wife not only had another path to parenthood available, 
she had already taken it. 

 
Because the husband was being deployed for military service,171 the couple had 

frozen a sample of his sperm.172 During their geographic separation, four embryos 

 
166 Id. It further noted that the parties were free to later agree to a different disposition. Id. 
 
167 Id. 
 
168 Id. 
 
169 McQueen v. Gadberry, 507 S.W.3d 127, 132 (Mo. Ct. App. 2016). 
 
170 Id. at 145–46, 146 n.19. 
 
171 Although the opinion does not indicate how old the wife was, it notes that concerns about her age 
influenced their initial discussions about children. Id. at 133. 
 
172 Id. at 133. 



144                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

were created from the husband’s sperm and the wife’s eggs.173 At that time, they had 
no discussions about the disposition of any unused embryos.174 While two of the 
embryos resulted in the birth of twin boys, the remaining two were stored at a facility 
near McQueen’s doctor’s office.175 Approximately three years later, when the 
embryos were being transferred to a different facility (due to the closure of the 
former), the parties were required to execute a directive about their disposition.176 
Although the wife handwrote that, upon divorce, she would receive the embryos, the 
evidence suggested the husband may not have known about this—possibly due to 
the wife’s deception.177 The trial court thus deemed the directive invalid and awarded 
the embryos to the husband and wife jointly, such that they could not be used without 
both parties’ authorization.178 It observed that, if the wife were allowed to use the 
embryos, the court would effectively be forcing the husband to procreate.179 The 
appellate court affirmed.180 While it noted that the parties initiated discussions about 
children in part due to concerns about the wife’s age (which is not indicated), there 
did not appear to be any fertility issues.181 While there are significant differences 
from some other cases due to the wife’s apparent fertility, again in McQueen a party 
who was already a parent was denied use of the embryos. 

 
These six decisions collectively reflect binary thinking about both reproductive 

potential and reproductive rights. Reproductive potential, which in reality exists 
along a spectrum, is implicitly reduced to either fertility or sterility, with infertile 
parties often being treated as fertile and, as such, denied access to embryos based on 
a perception that they have a reasonable alternative path to parenthood without the 
embryos. Some courts view adoption as a reasonable alternative path to parenthood, 

 
173 Id. at 133–34. 
 
174 Id. at 134. 
 
175 Id. 
 
176 Id. at 135. 
 
177 Id. at 153–54. 
 
178 Id. at 137. 
 
179 Id. 
 
180 Id. at 157. 
 
181 Id. at 133. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     145 

 

 

even though the parties in these cases would not be litigating if they wished to adopt. 
And some courts seem to entirely jettison the inquiry into alternative paths where a 
party is already a parent, which suggests that the right to procreate may expire or at 
least diminish once successfully exercised. Finally, oversimplification of 
reproductive potential leads to oversimplification of reproductive intentions and, by 
extension, of reproductive rights. Just as courts describe the parties and their desires 
in terms of binary oppositions, they describe the possible rights claims in terms of 
binary oppositions, recognizing only a right to procreate and a right to avoid 
procreation. This feature of state court decisions on frozen embryos derives, as 
Section II.B will show, from Federal Supreme Court doctrine. 
 

3. Post-Davis Cases Allowing Embryo Use and Statutes Affecting 
Embryo Use 

 
The above decisions illustrate the strength of Davis’s presumption in favor of 

the party wishing to avoid procreation and the narrowness of Davis’s exception for 
parties who lack a reasonable path to parenthood without the embryos. Whereas the 
cases in the previous section engaged in balancing and ruled against embryo use, the 
cases in this section engage in balancing but allow embryo use. Rather than ushering 
in a new era of more balanced decision-making, however, two out of three of these 
cases factually fit within a very narrow reading of Davis’s exception. These cases 
reaffirm that the exception is most likely to protect parties who are clearly sterile, 
presently childless, lacking in prospects for adoption, and who created the contested 
embryos in contemplation of those exact circumstances. Often, these parties have 
initiated IVF in response to a cancer diagnosis to preserve their ability to become a 
genetic parent after chemotherapy. This section surveys a set of three cases and two 
statutes to illustrate several points: First, Davis remains deeply influential. Second, 
the doctrine reflects binary thinking about reproductive potential. Courts implicitly 
categorize parties as either fertile or sterile and collapse infertility into fertility. 
Third, courts and parties alike accept binary thinking about reproductive rights. 
 

a. Reber v. Reiss 
 

In the 2012 decision of Reber v. Reiss, the Superior Court of Pennsylvania 
awarded frozen embryos to a wife who wished to use them over the objection of her 
husband, who wanted them donated to research or destroyed.182 About one year into 
the parties’ marriage, the wife learned that she had breast cancer.183 Because she was 

 
182 Reber v. Reiss, 42 A.3d 1131, 1134 (2012), appeal denied, by 619 Pa. 680 (2012). 
 



146                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

thirty-six years old, she elected to delay cancer treatment while she and her husband 
pursued IVF to preserve her ability to have children.184 After creating thirteen frozen 
embryos,185 the wife began cancer treatment.186 Time passed, and approximately four 
years into the parties’ marriage, the husband filed for divorce.187 Less than a year 
after filing, he intentionally conceived a child with another woman, with whom he 
planned to have more children.188 The wife (now recovered), was forty-four years 
old at the time of trial, had no children, and wished to use the jointly created 
embryos.189 Because the parties’ consent form provided no guidance, both the master 
who initially heard the case and the trial court balanced the parties’ interests.190 While 
the master ruled for the husband,191 the trial court reversed and ruled for the wife.192 
While acknowledging Davis’s admonition that “ordinarily the party wishing to avoid 
procreation should prevail,” the trial court nevertheless held that because the wife 
could not “achieve biological parenthood” without the embryos, the scales tipped in 
her favor.193 

 

 
183 Id. at 1132. 
 
184 Id. at 1132-33. 
 
185 Id. at 1133. 
 
186 Id. (The treatment included “two surgeries, eight rounds of chemotherapy and 37 rounds of 
radiation.”). 
 
187 Id. 
 
188 Id. 
 
189 Id. 
 
190 Id. at 1134, 1136. (The appellate court reported, “[N]either party had signed the portion of the 
consent form related to the disposition of the pre-embryos in the event of divorce or death of one party.” 
Id. at 1136. Although the husband asked the court to enforce a provision of the consent form that 
indicated the embryos would only be stored for three years, the appellate court held that this provision 
was not an agreement between husband and wife, but rather between the couple and the storage facility, 
which was (according to the same form) supposed to provide the parties with notice when it was time 
to destroy the embryos. Id. The facility had not sent any notice. Id.) 
 
191 Id. at 1133. 
 
192 Id. at 1134. 
 
193 Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     147 

 

 

On appeal, without deciding which approach (contract/balancing or 
contemporaneous mutual consent) should apply in future cases, the superior court 
approved both the trial court’s decision to balance the parties’ interests as well as the 
result of its balancing.194 The appellate court first considered the wife’s interests.195 
Although the husband argued that the wife had other paths to parenthood in that she 
could become a foster parent or adopt, the court held that the proper consideration 
was not whether the wife could achieve “any sort of parenthood,” but rather whether 
she could “procreate.”196 Noting the wife’s desire to experience pregnancy and 
genetic parenthood,197 the court recognized that “[a]doption is a laudable, wonderful, 
and fulfilling experience[,]” but “occupies a different place for a woman than the 
opportunity to be pregnant and/or have a biological child.”198 It further recognized 
that, due to the wife’s status as an older, single woman with a complicated health 
history, adoption might not be possible.199 Ultimately, the court concluded that the 
contested embryos “likely [represented the wife’s] only chance at genetic parenthood 
and her most reasonable chance for parenthood at all,” and described the wife’s 
interests as “compelling.”200 

 
Turning to the husband’s interests in avoiding use of the embryos, the court 

observed that some of his concerns should be allayed by the wife’s promise to allow 
him to develop a relationship with any child or children (if he wished to do so), but 
to hold him exempt from any child support obligation.201 In response to the husband’s 
claim that he “never intended actually to have a child with [the w]ife,” the court 
reasoned that “the only reason one undergoes IVF is to have a child.”202 Finally, 
despite the husband’s argument that allowing the wife to use the embryos would be 

 
194 Id. at 1136–37. 
 
195 Id. at 1137–40. 
 
196 Id. at 1138. 
 
197 Id. The wife stated, “I wouldn’t have gone through . . . the whole IVF thing if I hadn’t wanted  
children . . . . And I wanted that experience of being pregnant and that closeness, that bond.” Id. 
 
198 Id. 
 
199 Id. at 1139. 
 
200 Id. at 1139–40. 
 
201 Id. at 1140–41. 
 
202 Id. at 1140. 



148                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

tantamount to forcing him to procreate, the court held that the state had no public 
policy regarding “forced procreation under these circumstances.”203 It ultimately 
concluded that the husband’s interests were lesser than the wife’s. The husband 
appealed, but the Supreme Court of Pennsylvania declined to hear the case.204 

 
Rather than altering prior doctrine, Reber illustrates that if a party genuinely falls 

within Davis’s exception for parties who lack a reasonable path to parenthood 
without the embryos, she can potentially prevail. The fact that Reber is among the 
first cases allowing the use of contested embryos emphasizes the narrowness of the 
exception:205 the wife was sterile due to advanced age and chemotherapy, presently 
childless, lacking in prospects for adoption, and had created the embryos in 
contemplation of those exact circumstances. Thus, while the result in Reber may 
have differed from prior results, the doctrine did not meaningfully evolve or move 
beyond the embrace of binaries.  

 
b. Szafranski v. Dunston 

 
In the 2015 decision of Szafranski v. Dunston, the Appellate Court of Illinois 

awarded frozen embryos to a woman who sought to use them over the objection of 
her former boyfriend and co-progenitor.206 When Karla Dunston learned that she had 
non-Hodgkins lymphoma and that chemotherapy would likely destroy her fertility, 
she decided to undergo IVF.207 Against the advice of her oncologist, she delayed 
cancer treatment to preserve her ability to “be a mother and have a biological 
child.”208 Although neither she nor her boyfriend, Jacob Szafranski, believed their 
relationship would ultimately endure, they jointly created three frozen embryos.209 

 
203 Id. at 1142. 
 
204 Reber v. Reiss, 619 Pa. 680 (2012). 
 
205 While there was at least one earlier case, Marriage of Nash, that allowed the use of contested 
embryos, it differed in that the male genetic progenitor received embryos that were created with his 
sperm and donor eggs. In re Marriage of Nash, 2009 WL 1514842 (Wash. App. June 1, 2009) 
(unpublished opinion). I have excluded from my discussion cases in which both parties were not genetic 
progenitors. 
 
206 Szafranski v. Dunston, 34 N.E.3d 1132 (2015). 
 
207 Id. at 1136–37. 
 
208 Id. at 1137. 
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     149 

 

 

When their relationship ended and Szafranski’s new girlfriend objected to Dunston 
using the embryos, Szafranski sued Dunston to prevent her from going forward.210 
Dunston counterclaimed, seeking “sole custody and control” of the embryos.211 The 
trial court balanced the parties’ interests and ruled in favor of Dunston.212 The 
appellate court, however, reversed and remanded with the following instructions: the 
trial court should enforce any existing contracts but, if there is no contract, it should 
balance the parties’ interests.213 

 
On remand, the trial court again ruled in favor of Dunston. It held that the parties 

had agreed she would be able to use the embryos without Szafranski’s consent.214 To 
provide a complete record for appeal, however, the trial court also balanced the 
parties’ interests.215 It concluded that, inasmuch as Dunston’s interests were 
weightier, she would prevail under either analysis.216 In performing the balancing, 
the court emphasized that Dunston’s specific desire for genetic parenthood could be 
achieved only by using the contested embryos.217 On the other hand, Szafranski’s 
concern that Dunston’s use of the embryos would preclude him from finding love in 
the future was viewed as “speculative.”218 The fact that one subsequent girlfriend had 
a negative reaction to Szafranski’s participation in IVF with Dunston did not 
foreclose all future romantic prospects.219 The appellate court agreed with both of 
the trial court’s conclusions—first, that Dunston prevailed under the parties’ 

 
209 Id. at 1136–37. 
 
210 Id. at 1136–37, 1146. 
 
211 Id. at 1136. 
 
212 Id. 
 
213 Id. at 1136–37. 
 
214 Id. at 1137. 
 
215 Id. at 1147. 
 
216 Id. at 1137. 
 
217 Id. at 1147. 
 
218 Id. at 1147, 1161. (This worry stemmed from his new girlfriend’s negative reaction.) 
 
219 Id. at 1147. 



150                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

agreement; second, that Dunston would also prevail under the balancing test.220 In 
discussing the balancing of interests, the appellate court reviewed each party’s 
interests. With respect to Szafranski, it observed that he worried not only about his 
future romantic prospects, but also that he was being “forced to procreate with a 
woman whom he does not love.”221 With respect to Dunston, it observed that the 
embryos represented her only chance of achieving her desire for a biological child 
“‘with part of’ her father, who passed away when she was five years old” and that 
she did not expect Szafranski to provide support for any resulting children.222 

 
Szafranski, like Reber, ultimately serves to emphasize the narrowness of Davis’s 

exception for parties who lack a reasonable path to parenthood without the contested 
embryos. Like the wife in Reber, Dunston was clearly sterile due to chemotherapy, 
presently childless, and had created the embryos in contemplation of those exact 
circumstances. Thus, while Reber and Szafranski may seem to signal a change, their 
doctrine did not meaningfully evolve from Davis or move beyond the embrace of 
binaries. 

 
c. Mate v. Mate 

 
In the unpublished 2016 decision of Mate v. Mate, the Superior Court of 

Connecticut allowed a wife to use embryos that the parties had created during their 
marriage, but held that the husband would not be the legal father or incur any child 
support obligations.223 During their marriage, the parties underwent IVF, which 
produced one child and several frozen embryos.224 In conjunction with the procedure, 
the parties filled out a form indicating that upon divorce, the wife would receive the 
embryos.225 At divorce, the wife sought control over the embryos, while the husband 
asked that they be destroyed or, alternatively, that he not be the legal father of, or be 

 
220 Id. at 1161-62. 
 
221 Id. at 1162. 
 
222 Id. 
 
223 Mate v. Mate, No. FBTFA156048231, 2016 WL 6603254 (Conn. Super. Ct. Sept. 23, 2016) 
(unpublished opinion). 
 
224 Id. at 6, 12. 
 
225 Id. at 8. 
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     151 

 

 

required to pay child support for, any resulting children.226 The court held that their 
disposition form was unenforceable, in part because public policy precluded 
“forc[ing] a person to parent a child.”227 Notwithstanding this pronouncement, the 
court allowed the wife to use the embryos,228 but imposed the following 
requirements: should she decide to use the embryos, the wife must give the husband 
advance notice, allow him to terminate his parental rights, and hold him harmless 
from child support expenses.229 While Davis is discussed in Mate, it does not seem 
to have the same pull as in some of the other decisions. It is notable that, although 
the wife was already a parent, she was able to use the embryos. However, it is worth 
reiterating that the Mate opinion is unpublished. 
 

d. State Statutes Affecting Embryo Use 
 

In addition to judicial decisions, there are at least two states with statutes that 
directly affect frozen embryo disputes. Both appear to be products of the pro-life 
movement’s efforts. In 1986, as IVF became more widely available, Louisiana 
adopted a statute deeming a viable in vitro embryo “a juridical person which shall 
not be intentionally destroyed.”230 More recently, in 2018, Arizona adopted a statute 
directing courts adjudicating frozen embryo disputes between spouses to award 
contested embryos according to the following priorities: first, award the embryos “to 
the spouse who intends to allow the[m] to develop to birth;” second, if both spouses 
wish to allow them to develop to birth and both have contributed gametes, award the 
embryos so as to “provide[] the best chance for the[m] to develop to birth;” and third, 
if both spouses wish to allow them to develop to birth but only one contributed 
gametes, award the embryos “to the spouse that provided gametes.”231 These statutes 
reveal the extent to which embryo disputes are influenced by the gravitational pull 
of abortion politics, which is of course dominated by binary thinking about rights. 
As much as the mainstream pro-choice movement may miss certain voices and 

 
226 Id. at 6. 
 
227 Id. at 8, 12 (also based on the lack of consideration). 
 
228 Id. at 18. 
 
229 Mate, 2016 WL 6603254. 
 
230 LA STAT. ANN. § 9:129 (1986). See also LA STAT. ANN. § 9:121 (1986) (definition of “human 
embryo”). 
 
231 ARIZ. REV. STAT. ANN. § 25-318.03 (2018). 



152                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

experiences (see Part I, supra), the pro-life movement overtly deprives women of 
agency and dignity. 
 

4. Post-Davis Cases Defying Easy Categorization but Illuminating 
Important Lessons About Interest Balancing 

 
The two cases below defy easy categorization, but illuminate important lessons 

about interest balancing. The first elaborates new factors that courts should consider 
when they engage in interest balancing. The factors are significant in that they seem 
to start from a position closer to equipoise, rather than weighted against the use of 
contested embryos. Yet the court ultimately embraces a binary view of reproductive 
rights. The second case in this section was ultimately decided based on contract 
principles, but is included because the lower courts engaged in interest balancing. 
While the family court ruled against embryo use, the intermediate court vacated. The 
intermediate court’s decision was reminiscent of Reber and Szafranski in that it 
allowed embryo use by a woman who was childless, effectively sterile due to 
chemotherapy, lacking in prospects for adoption, and had created the embryos in 
contemplation of those exact circumstances. It thus fits factually within a very 
narrow reading of Davis’s exception. Ultimately, while there may be some 
movement, binary thought patterns remain strong in these cases. 
 

a. Marriage of Rooks 
 

Marriage of Rooks has not reached a reported conclusion, so it is difficult to 
categorize. The Supreme Court of Colorado’s 2018 decision articulated new factors 
to be used in interest balancing and remanded for further consideration in light of 
those factors.232 Every level of the case’s trajectory is illuminating. At the time of 
their divorce, the parties had three children together—all of whom were the result of 
IVF—and six frozen embryos.233 The wife, who had “undisputed[ly] . . . used her 
last eggs to create the embryos,” wanted them preserved for her own future use.234 
The husband wanted them discarded.235 Were the wife to remain in Colorado, state 
law “would relieve [the] husband of financial responsibility for a future child born 

 
232 In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018). 
 
233 In re Marriage of Rooks, 488 P.3d 116, 118 (Colo. App. 2016), rev’d, 429 P.3d 579 (Colo. 2018). 
 
234 Id. at 117. 
 
235 Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     153 

 

 

using the embryos without his consent.”236 The wife, however, planned to move to 
North Carolina, which did not have a similar provision.237 The parties had earlier 
signed an agreement stating that upon divorce or dissolution, the adjudicating court 
would determine the disposition of their embryos.238 Because their agreement offered 
no guidance for determining the disposition, the trial court balanced the parties’ 
interests and ultimately ruled in favor of the husband.239 

 
Finding no abuse of discretion in the trial court’s balancing, the intermediate 

court affirmed.240 It held, among other things, that the trial court properly considered 
that the husband might feel a moral obligation to a future child, even if he had no 
legal obligation.241 It further held that “the [trial] court could reasonably conclude 
that husband’s interest in not producing additional offspring should prevail over 
wife’s interest in having a fourth child.”242 The court, indeed, emphasized that this 
case differed from Davis, “where the woman’s only opportunity to bear children 
would be foreclosed if the court did not award the embryos to her.”243 Thus, the court 
viewed Davis’s exception for parties lacking “a reasonable possibility of achieving 
parenthood”244 without the frozen embryos in question as only covering parties who 
are childless at the time of the litigation. Even though the wife was sterile, the 
intermediate court ruled against her because she already had three children. While 
stating that the wife and husband had “corresponding and equal rights,” it upheld the 
trial court’s weighing of those rights in favor of the husband.245 The intermediate 

 
236 Id. at 118, 123. 
 
237 Id. at 123. 
 
238 Id. at 120. 
 
239 Id. at 121. It should be noted that the court suggested it would enforce a contract to procreate, stating, 
“Wife could have contracted to receive the embryos on dissolution of the marriage, but did not do so[.]” 
Id. at 124. 
  
240 Id. at 122. 
 
241 Id.  
 
242 Id.  
 
243 Id.  
 
244 Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992). 
 
245 In re Marriage of Rooks, 488 P.3d at 123. 



154                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

court’s opinion is yet another example of Davis’s deep influence and the tendency 
toward anti-procreation outcomes. 

 
On appeal, however, the Supreme Court of Colorado (as previously mentioned) 

reversed and remanded for further consideration in light of newly articulated factors 
for balancing. The court directed judges to consider: (1) whether the spouse seeking 
to preserve the embryos wishes to use them herself; (2) whether the spouse seeking 
to preserve the embryos can have genetic children via other means; (3) why the 
parties pursued IVF (e.g., due to chemotherapy); (4) the hardship for the spouse 
opposing embryo use; (5) a spouse’s use of the embryos in bad faith or as unfair 
leverage; and (6) any other relevant factors. The court directed judges not to consider 
whether the spouse seeking to preserve the embryos “can afford a child” and whether 
she “could instead adopt a child.”246 Finally, the court said “the sheer number of a 
party’s existing children, standing alone, [shall not] be a reason to preclude 
implantation of the pre-embryos.”247 

 
While the newly articulated factors appear to place the parties on more equal 

footing than previous examples of interest balancing (since most courts begin with 
the scales weighted against the use of contested embryos), the final outcome of this 
case has not been reported. And while this court appears to appreciate the complexity 
of reproductive potential to a greater degree than some others, it continues to 
embrace a binary view of reproductive rights. The case, it said, “pits one spouse’s 
right to procreate directly against the other spouse’s equivalently important right to 
avoid procreation.”248 

 
b. Terrell v. Torres 

 
The 2020 decision of Terrell v. Torres is also difficult to categorize.249 There, 

both lower courts engaged in interest balancing and one allowed the use of embryos, 
but the Supreme Court of Arizona held that the outcome was governed by a consent 
form the parties had signed. Following contract principles, the high court ordered 
that the embryos be donated for use by another couple, despite Torres’s wishes to 

 
246 In re Marriage of Rooks, 429 P.3d 579, 581 (Colo. 2018). 
 
247 Id. 
 
248 Id. 
 
249 Terrell v. Torres, 456 P.3d 13 (Ariz. 2020), as amended (Feb. 21, 2020). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     155 

 

 

use them herself.250 The facts were as follows: In 2014, at the age of thirty-three, 
upon learning she had cancer and needed chemotherapy, Torres decided to create 
embryos to preserve her ability to have a genetic child.251 Terrell, her then-boyfriend, 
initially declined to provide sperm, but later agreed.252 The consent form they signed 
noted that embryos “could not be used to produce a pregnancy over the other 
partner’s objection.”253 The parties checked the box stating that in the event of 
divorce or dissolution of their relationship, “[a] court decree and/or settlement 
agreement will be presented to the Clinic directing use to achieve a pregnancy in one 
of us or donation to another couple for that purpose.”254 The parties then married and 
underwent IVF, which resulted in seven frozen embryos.255 Torres’s chemotherapy 
“caused ‘a significant drop in her reproductive function.’”256 In 2017, when Terrell 
filed for divorce, Torres wanted to use the embryos herself, whereas Terrell wanted 
them donated to another couple.257 

 
The family court, finding the consent form inconclusive, engaged in interest 

balancing and held that “[Terrell’s] right not to be compelled to be a parent 
outweighs [Torres’s] right to procreate and desire to have a biologically related 
child.”258 Although Torres had a “‘less than one percent’ chance of becoming 
pregnant through normal means and [only a] remote possibility of adoption or 
insemination with a donor embryo,” it concluded that the possibility she could 
become a parent “negated her claims to [the] embryos.”259 The court of appeals 

 
250 Id. at 14. 
 
251 Id. 
 
252 Id. 
 
253 Id. 
 
254 Id. 
 
255 Terrell v. Torres, 456 P.3d 13, 14 (Ariz. 2020). 
 
256 Id. 
 
257 Id. 
 
258 Id. at 15. 
 
259 Terrell v. Torres, 438 P.3d 681, 692 (Ariz. Ct. App. 2019), as amended (June 6, 2019), review 
granted in part (Aug. 27, 2019), opinion vacated in part by 456 P.3d 13 (2020), as amended (Feb. 21, 
2020). (The quoted language, it should be noted, comes from the court of appeals opinion.) 



156                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

vacated.260 While it agreed that the parties’ interests should be balanced, it found that 
Torres’s interests were stronger.261 Of Terrell, the court observed that while he had 
married Torres and provided his sperm for IVF, he had later testified that he married 
her only because she needed health insurance and while “he hoped to have children 
with [her] ‘[i]f she survived,’ . . . at th[e] time [he signed the consent form] he thought 
her survival unlikely.”262 Of Torres, the court observed that a fertility specialist’s 
testimony showed, “without the embryos, Torres would be unable to have biological 
children.”263 The court noted it was unlikely Torres would obtain donor embryos or 
be approved for adoption.264 The “waiting list for obtaining donated embryos was 
long,” and Torres was not a good candidate for adoption given “her cancer diagnosis 
and a genetic mutation ‘BRCA1’ that increased her cancer risk.”265 Additionally, the 
court mentioned Torres’s statement that “she would not seek child support from 
Terrell.”266 

 
The Supreme Court of Arizona, as previously mentioned, vacated in part.267 It 

found that interest balancing was inappropriate because the consent form was 
dispositive and required that the embryos be donated for use by another couple.268 It 
therefore did not engage in interest balancing, but the analysis of both lower courts 
is revealing in a variety of respects. First, under a balancing analysis with even a 
narrow reading of Davis’s exception, it seems Torres should prevail: she was (similar 
to the parties in Reber and Szafranski) childless, was effectively sterile due to 

 
260 Id. at 684.  
 
261 Terrell, 456 P.3d at 15. 
 
262 Terrell, 438 P.3d at 685. 
 
263 Id. at 686. (Dr. Behera, the fertility specialist, further “testified that Torres’ lab work indicated ‘low 
to no’ ovarian function. Behera also testified that if Torres took medication to stimulate her ovaries ‘it 
probably would not result in any viable eggs.’ Agreeing that only in a ‘miraculous situation’ Torres 
could achieve ‘a postmenopausal pregnancy,’ Behera testified that there was a ‘less than 1 percent’ 
chance of that occurring.”). Id. 
 
264 Id. at 686. 
 
265 Id. 
 
266 Id. 
 
267 Terrell, 456 P.3d at 18. 
 
268 Id. at 14, 18. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     157 

 

 

chemotherapy, was lacking in prospects for adoption, and had created the embryos 
in contemplation of these exact circumstances. Second, the lower courts took 
different approaches to thinking about reproductive potential: while the family court 
seemed to mistake sterility, or perhaps extreme infertility, for fertility, the court of 
appeals took a more nuanced approach and recognized the unlikelihood of Torres 
actually becoming a parent. Third and finally, the court of appeals took a somewhat 
atypical approach to the rights at issue: While the family court had “balance[d] what 
it construed as Torres’ ‘constitutionally established right to procreate’ against 
Terrell’s ‘right not to procreate,’” the court of appeals said this was incorrect.269 
According to the court of appeals, there were no constitutional rights at stake. 
Constitutional rights are “directed at protecting an individual against government 
intrusion,” but here “the parties [had] specifically empowered the court to decide 
[their] dispute.”270 Thus, the court should consider only the parties’ interests.271 
 

B. Binary Thinking in the Federal Supreme Court 
 

The binary vision of rights embraced by the state courts discussed in Section II.A 
is reflective of Federal Supreme Court doctrine. When state court judges describe 
frozen embryo disputes as “pit[ting] one spouse’s right to procreate directly against 
the other spouse’s equivalently important right to avoid procreation[,]”272 they mirror 
the Federal Supreme Court’s partitioning of substantive due process rights into 
discrete categories. While the Supreme Court has had little occasion to consider the 
interrelationship of the right to procreate and the right to avoid procreation (since 
most litigation raises only one or the other), the opinions of state court judges faced 
with embryo disputes offer a unique window into that interrelationship when they 
engage in interest balancing. This section provides an overview of the Federal 
Supreme Court cases that inform state court decisions about frozen embryos. 

 
Virtually all of the Federal Supreme Court cases reviewed in this section were 

discussed in the state court decisions described in Section II.A. It is important to note 
at the outset that the existing doctrine is imbalanced: while the Supreme Court has 
seldom addressed the right to procreate, it has often opined upon the converse right 
to avoid procreation. This section is divided into two subsections. The first reviews 

 
269 Terrell, 438 P.3d at 693. 
 
270 Id. This is similar to the discussion of the court in Findley, discussed above. 
 
271 Terrell, 438 P.3d at 693. 
 
272 In re Marriage of Rooks, 429 P.3d 579, 581 (2018). 



158                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

the right to procreate, and the second reviews the right to avoid procreation. Both 
attempt to understand the theoretical underpinnings of reproductive rights and the 
reasons these rights have been viewed as in opposition to each other rather than more 
holistically. 
 

1. The Right to Procreate 
 

This section explores the right to procreate, broadly conceived, through a survey 
of Supreme Court cases relating to reproduction. The intent is not to compile an 
exhaustive list of every reproduction-related decision, but rather to develop an 
accurate picture of existing doctrine and commonly cited rationales for respecting 
reproductive rights. Existing rationales are revealed to vary widely across cases: 
some opinions protect bodies, some protect spaces, some protect choices, and others 
seem to lack any coherent theorization. Ultimately, the lack of a robustly theorized 
right to procreate creates a vortex that warps other areas of doctrine. 

 
This section is divided into four subsections: The first examines cases from the 

1890s through the 1920s. While some of these early cases showed promise in that 
they protected bodily integrity and parental decision-making, the 1927 decision of 
Buck v. Bell infamously allowed a forced sterilization and energized the eugenics 
movement. The second subsection focuses entirely on the seminal 1942 decision of 
Skinner v. Oklahoma, which continues to be the United States Supreme Court’s most 
significant treatment of the right to procreate. The third subsection explores cases on 
contraception and abortion spanning the 1960s through the present. While several of 
these cases describe a right to make decisions about procreation, which would 
presumably protect outcomes favoring procreation, on their facts they are all about 
the right to avoid procreation. These cases are, therefore, discussed more thoroughly 
in Section II.B.2. The fourth subsection suggests that there may be hope for a more 
robust right to reproductive choice in the future. The 2015 decision of Obergefell v. 
Hodges, some scholars have argued,273 gestures toward this possibility. Were the 
doctrine thus developed, rights surrounding reproduction would be both expanded 
and strengthened. 
 

a. The Early Cases (1890s–1920s) 
 

The Supreme Court of the United States has long professed a respect for bodily 
integrity. In 1891, in Union Pacific Railway Company v. Botsford, it ruled that a 

 
273 Courtney Megan Cahill, Obergefell and the “New” Reproduction, 100 MINN. L. REV. HEADNOTES 
1, 6 (2016). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     159 

 

 

woman could not be compelled to undergo a physical examination in a personal 
injury action.274 Clara Botsford, who sued Union Pacific for injuries sustained while 
riding one of its trains, received a favorable verdict without her injury having been 
assessed in the context of the litigation.275 In rendering its decision, the Court wrote, 
“No right is held more sacred . . . than the right of every individual to the possession 
and control of his own person.”276 It continued, “To compel any one, and especially 
a woman, to lay bare the body, or to submit it to the touch of a stranger, without 
lawful authority, is an indignity, an assault, and a trespass . . . .”277 Although the 
opinion is laden with gendered stereotypes about women and modesty, and although 
the rules for personal injury plaintiffs have since changed, the broader sentiments 
about privacy remain.278 While bodily integrity is often cited as one rationale for 
respecting reproductive choice, it is strongest in the context of abortion where 
potential life resides within a woman’s body. It does not as easily extend to the 
context of reproductive technology where gametes are handled outside of the body. 

 
The Court has also long professed a respect for parental decision-making. The 

1920s cases of Meyer v. Nebraska and Pierce v. Society of Sisters both recognize the 
right of parents “to direct the upbringing and education of children under their 
control.”279 In Meyer, the Court held that the State of Nebraska could not create a 
“homogenous people” by banning foreign language instruction.280 In Pierce, the 
Court similarly held that the State of Oregon could not “standardize its children” by 
mandating public school attendance.281 Based on this resistance to normalization, 
one could argue that we respect parental decision-making in part because it promotes 
diversity. And if we truly respect parental decision-making, perhaps we ought to 

 
274 Union Pac. Ry. v. Botsford, 141 U.S. 250 (1891). 
 
275 Id. 
 
276 Id. at 251. 
 
277 Id. at 252. 
 
278 Anita L. Allen, Undressing Difference: The Hijab in the West, 23 BERKELEY J. GENDER L. & JUST. 
208, 217 (2008) (book review). 
 
279 Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925) (discussing Meyer); Meyer v. Nebraska, 
262 U.S. 390, 399 (1923). 
 
280 Meyer, 262 U.S. at 402. The ban applied to children who had not yet completed the eighth grade. Id. 
at 397. 
 
281 Pierce, 268 U.S. at 535. 



160                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

respect the earliest parental decisions—i.e., decisions about whether, when, and how 
one becomes a parent. It is worth noting that both Meyer and Pierce, in dicta, also 
reference the right to “establish a home and bring up children[,]” which could 
arguably encompass decisions about becoming a parent.282 Courts continue to cite 
both cases, and parental decision-making continues to garner respect.283 

 
In the later 1920s, the Court revealed that, despite its pronouncements in 

Botsford, it does not always protect bodily integrity. It is decidedly less respectful of 
certain bodies—for example, those of individuals with perceived disabilities. In 
1927, it infamously upheld the sterilization of Carrie Buck, a woman who was 
wrongly labeled “feeble-minded” and confined to a state institution after being raped 
and bearing an “illegitimate” child.284 Buck v. Bell is one of only two Supreme Court 
cases addressing the right to procreate, and it resoundingly rejects that right.285 After 
wrongly portraying Carrie Buck as the “daughter of a feeble-minded mother” and 
the “mother of an illegitimate feeble-minded child,”286 the Court proclaimed, “Three 
generations of imbeciles are enough.”287 Characterizing its ruling as beneficial not 
only to society but also to Carrie herself (because infertility would enable her to be 
released from confinement), the Court dismissed compulsory sterilization as no more 

 
282 Meyer, 262 U.S. at 399; see also Pierce, 268 U.S. at 534–35 (referring to “the liberty of parents and 
guardians to direct the upbringing and education of children under their control”). 
 
283 Troxel v. Granville, 530 U.S. 57, 65 (2000). The Troxel Court wrote, “More than 75 years ago, in 
Meyer v. Nebraska, we held that the ‘liberty’ protected by the Due Process Clause includes the right of 
parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two 
years later, in Pierce v. Society of Sisters, we again held that the ‘liberty of parents and guardians’ 
includes the right ‘to direct the upbringing and education of children under their control.’” Id. (internal 
citations omitted). 
 
284 Buck v. Bell, 274 U.S. 200, 205 (1927); Khiara M. Bridges, White Privilege and White 
Disadvantage, 105 VA. L. REV. 449, 454–55 (2019). 
 
285 The other case addressing the right to procreate is Skinner v. Oklahoma. It is worth noting that, as 
Professor Khiara Bridges explains, Carrie Buck’s attorney “was actually allied with the persons who 
hoped to sterilize Carrie and others like her.” Bridges, supra note 284, at 455. See also Paul Lombardo, 
Facing Carrie Buck, 33 HASTINGS CTR. REP. 14 (2003). 
 
286 Buck, 274 U.S. at 205. It is evident from Professor Khiara Bridges’s account of the case that the tests 
used to determine intellectual capacity were questionable. Bridges, supra note 284, at 454 (citing ADAM 
COHEN, IMBECILES: THE SUPREME COURT, AMERICAN EUGENICS, AND THE STERILIZATION OF CARRIE 
BUCK 192 (2016)). Furthermore, Carrie’s daughter, Vivian, was only six months old when tested. Id. 
 
287 Buck, 274 U.S. at 207. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     161 

 

 

burdensome than compulsory vaccination.288 In sum, Buck provides no protection at 
all for individual choices relating to reproduction. 

 
Yet, astonishingly, Buck has not been explicitly overruled.289 It is cited in Roe v. 

Wade for the proposition that the “right to do with one’s body as one pleases” is not 
“unlimited.”290 Thus, even as the Court handed down Roe—its most pro-choice 
decision to date—it approvingly invoked the memory of state-sponsored eugenics 
programs and the idea that procreation is only for certain populations. Buck was most 
recently cited in a majority opinion in 2001: the Court’s decision in Board of Trustees 
of University of Alabama v. Garrett prevented individuals with disabilities from 
suing their state employers for violations of the Americans with Disabilities Act of 
1990 (ADA).291 The majority observed that, although Buck did not provide any 
constitutional protection against forced sterilization, states nevertheless appeared to 
have discontinued the practice by the time the ADA was passed in 1990.292 Both Roe 
and Garrett signal that Buck remains valid, even though neither directly raised 
questions about the right to avoid sterilization or the broader right to procreate. Such 
questions were, however, raised by the 1942 case of Skinner v. Oklahoma,293 which 
was the Court’s most obvious opportunity to overrule and discredit Buck. 
 

b. The Seminal Case—Skinner (1942) 
 

Jack Skinner, convicted once of stealing chickens and twice of armed robbery, 
was labeled a habitual criminal and ordered to undergo sterilization by vasectomy—
although a person who had been convicted three times for embezzlement (a white-
collar crime) would not have been thus punished.294 The Habitual Criminal 
Sterilization Act, in other words, discriminated between blue-collar criminals like 
Skinner, who were subject to sterilization, and white-collar criminals, who were not. 

 
288 Id. 
 
289 Derek Warden, Ex Tenebris Lux: Buck v. Bell and the Americans with Disabilities Act, 51 U. TOL. 
L. REV. 57, 62 (2019). 
 
290 Roe v. Wade, 410 U.S. 113, 154 (1973). 
 
291 Bd. of Tr. of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). 
 
292 Id. at 369 n.6. 
 
293 Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535 (1942). 
 
294 Id. at 537–39. 



162                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Justice Douglas, writing for the Court, struck the Act as a violation of the 
fundamental rights prong of the Equal Protection Clause.295 He observed that, in 
addition to discriminating, the Act also infringed “one of the basic civil rights of 
man”—i.e., “procreation,” or “the right to have offspring.”296 He described the right 
as “fundamental to the very existence and survival of the race.”297 Thus, one reason 
to respect the right to procreate is that it helps to prevent underpopulation, which 
may be relevant given that birthrates in the United States have been falling for at 
least the past decade.298 Yet, it is very different to refrain from sterilizing someone 
than to affirmatively assist them in procreating via reproductive technology. 

 
While Skinner represents the Court’s only direct recognition of the right to 

procreate, it does not expressly overrule Buck.299 In his concurrence, Justice Stone 
pointed out that Skinner could be distinguished from Buck by the procedural 
protections.300 While the Buck Court professed “no doubt” that Carrie Buck’s due 
process rights had been respected (though in fact historians tell us her lawyer 
betrayed her),301 Justice Stone observed that Skinner had not been afforded a similar 
process.302 Skinner had not had an “opportunity to be heard on the issue as to whether 

 
295 Id. at 541. 
 
296 Id. at 536, 541. 
 
297 Id. at 541. 
 
298 Melissa S. Kearney & Phillip Levine, Will Births in the U.S. Rebound? Probably Not, BROOKINGS 
INST. (May 24, 2021), https://www.brookings.edu/blog/up-front/2021/05/24/will-births-in-the-us-
rebound-probably-not/ [https://perma.cc/595S-GZ2N] (suggesting that “low birth rates and below 
replacement level fertility rates in the U.S. are probably here to stay for the foreseeable future”). See 
also Karen Kaplan, Americans Keep Having Fewer Babies as U.S. Birthrates Hit Some Record Lows, 
L.A. TIMES (June 30, 2017), http://www.latimes.com/science/sciencenow/la-sci-sn-us-birth-rate-
20170630-htmlstory.html [https://perma.cc/MBF8-TCXH] (explaining that while the U.S. birthrate 
has, since 1971, been lower than necessary to replace the previous generation, immigration has 
increased the population). 
 
299 Warden, supra note 289, at 62. 
 
300 Skinner, 316 U.S. at 543-45 (Stone, J., concurring); PAUL A. LOMBARDO, THREE GENERATIONS, NO 
IMBECILES 232 (2008). 
 
301 Buck v. Bell, 274 U.S. 200, 207 (1927). As Professor Lombardo tells us, Carrie Buck’s lawyer 
“actually betrayed her, by neglecting to challenge the claims of eugenicists who testified at her trial and 
colluding with the state’s lawyer to guarantee that the sterilization law would remain in force.” 
Lombardo, supra note 285. 
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     163 

 

 

he is the probable potential parent of socially undesirable offspring.”303 The majority 
opinion in Skinner discusses Buck at several points, each of which is carefully 
worded to avoid coming into conflict with the earlier decision. As Professor Paul 
Lombardo explains, “There is a common misconception that . . . Skinner all but 
overruled Buck[,]” but “[y]ears after the case, Justice Douglas himself reiterated that 
there was no desire by the Skinner [C]ourt to overrule Buck.”304 Thus, the two cases 
coexist despite the tension between them. 

 
One of the more sustained discussions of these two cases appears in Justice 

Marshall’s dissent, joined by Justice Douglas, in San Antonio Independent School 
District v. Rodriguez.305 Decided in 1973 (the same year as Roe), Rodriguez upheld 
Texas’s property tax reliant school financing system against an equal protection 
challenge.306 Justice Marshall, in his dissent, used the right to procreate as an 
example in opining on “whether [a given] interest is fundamental for purposes of 
equal protection analysis.”307 He observed that, while the Buck Court had refused to 
recognize the right to procreate, the Skinner Court, “without impugning the 
continuing validity of Buck[,]” had pronounced procreation “fundamental to the very 
existence and survival of the race.”308 He continued by noting that, although the Roe 
Court had recognized the “importance of procreation,” the “limited stature” of “any 
‘right’ to procreate is evident from the fact that [the Roe Court] reaffirmed its initial 
decision in Buck v. Bell.”309 Justice Marshall, in other words, recognized the 
embattled status of the right to procreate. 

 

 
302 Skinner, 316 U.S. at 544 (Stone, J., concurring). 
 
303 Id. at 538 (majority), 544 (Stone, J., concurring). 
 
304 LOMBARDO, supra note 300. 
 
305 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 70–134 (1973). 
 
306 Id. at 100–01 (Marshall, J., Dissenting). 
 
307 Id. at 100. 
 
308 Id. 
 
309 Id. at 100–01. 



164                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Since 1973, the Supreme Court and various justices have occasionally referenced 
Skinner as protecting choices concerning procreation.310 In Zablocki v. Redhail 
(1978), where the Court struck a statute limiting the marriage rights of parents under 
child support obligations, Skinner was cited as protecting “personal decisions 
‘relating to . . . procreation[.]’”311 In Planned Parenthood v. Casey (1992), which 
will be discussed further below, Skinner was cited by the joint opinion as limiting “a 
State’s right to interfere with a person’s most basic decisions about family and 
parenthood.”312 In Washington v. Glucksberg (1997), where the Court upheld a state 
ban on physician-assisted suicide, Skinner was cited as establishing that liberty 
“includes the right[] . . . to have children.”313 Justice Souter, concurring, described 
Skinner as having “added decisions regarding procreation to the list of liberties 
recognized in Meyer and Pierce and loosely suggested . . . a judicial obligation to 
scrutinize any impingement on such an important interest with heightened care.”314 
Yet, despite these later opinions, Buck v. Bell has not been overruled and procreative 
rights remain enigmatic.315 

 
310 There are several more cases than are mentioned in this paragraph, which is focused on only the 
most significant instances. For example, in Cruzan v. Director, Missouri Department of Health (1990), 
as he dissented from the Court’s decision, Justice Stevens commented that Skinner’s sterilization had 
been barred because it would have interfered with “bodily integrity” as well as “‘marriage and 
procreation,’” which concern “‘the basic civil rights of man.’” Cruzan v. Director, Missouri Dep’t of 
Health, 497 U.S. 261, 342 (1990). 
 
311 Zablocki v. Redhail, 434 U.S. 374, 385 (1978) (internal citations omitted). The full list is as follows: 
“[R]elating to marriage, procreation, contraception, family relationships, and child rearing and 
education.” Id. It then observed, “[I]f [Redhail’s] right to procreate means anything at all, it must imply 
some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally 
to take place.” Id. at 386. At the time, Wisconsin banned fornication, though this would not be 
permissible under current doctrine. Id. at 386 n.11; Lawrence v. Texas, 539 U.S. 558 (2003) (striking a 
state sodomy ban on due process grounds); Martin v. Ziherl, 607 S.E.2d 367 (2005) (striking a state 
fornication statute based on Lawrence). The Martin court stated, “[A]pplying the reasoning of Lawrence 
as Martin asks us to do, leads us to conclude that [the challenged fornication statute] is unconstitutional 
because by subjecting certain private sexual conduct between two consenting adults to criminal 
penalties it infringes on the rights of adults to ‘engage in the private conduct in the exercise of their 
liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.’” Martin, 607 
S.E.2d at 371. 
 
312 Planned Parenthood v. Casey, 505 U.S. 833, 849 (1992). 
 
313 Washington v. Glucksberg, 521 U.S. 702, 720 (1997). 
 
314 Id. at 762 (Souter, J., concurring). 
 
315 There is a rich scholarship exploring Skinner and its implications, but further discussion is beyond 
the scope of this article. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     165 

 

 

c. Obergefell as a Right to Procreate Case? 
 

Perhaps surprisingly, Obergefell v. Hodges—the 2015 decision that gave us 
nationwide marriage equality—may offer some guidance.316 The Obergefell Court 
observed that “choices concerning . . . procreation . . . are protected by the 
Constitution.”317 According to Professor Courtney Cahill, “Obergefell suggests that 
procreation is a fundamental right under the Due Process Clause[.]”318 She points in 
part to its description of Skinner as striking Oklahoma’s sterilization policy because 
it violated guarantees of both liberty and equality.319 If Skinner, via Obergefell, 
protects a right to procreative liberty (rather than a more limited right to “equal 
liberty,” which is only triggered when a particular group is targeted), she argues, 
“Obergefell provides an opening for . . . a robust articulation of procreation’s 
substantive constitutional dimension.”320  

Obergefell is not directly about reproduction, so any commentary on the right 
remains dicta—“an opening,” as Professor Cahill puts it, rather than a final 
conclusion. Yet her work illuminates the ways a more robustly articulated right could 
alter the state’s ability to regulate reproductive technologies.321 It also highlights 
Obergefell’s important move toward “constitutional parity between sexual and 
alternative reproduction.”322 Both have transformative potential. 

 
The extent to which the right to procreate is protected remains a matter of debate. 

Skinner was decided in 1942, and Buck—though it preceded Skinner—has not been 
overruled but instead has since been reaffirmed.323 While some modern cases 

 
316 Obergefell v. Hodges, 576 U.S. 644 (2015). 
 
317 Id. at 666. 
 
318 Cahill, supra note 273, at 6. 
 
319 Id. at 8. 
 
320 Id. The “equal liberty” reading of Skinner arises because, as previously discussed, it was decided 
under the fundamental rights prong of the Equal Protection Clause. Skinner, 316 U.S. at 541. Professor 
Cahill explains that “[t]his more restrained reading of Skinner avers that the Constitution prohibits the 
state from passing certain laws that curb the procreative liberties of particular groups, not from passing 
certain laws that curb the procreative liberties of everyone.” Cahill, supra note 273, at 7. 
 
321 Cahill, supra note 273, at 2 (arguing that Obergefell “destabilizes both traditionalist and non-
traditionalist justifications for alternative reproductive regulation”). 
 
322 Id. at 8–10. 
 



166                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

reference the right to “deci[de] whether to bear or beget a child,”324 which would 
seem to protect either decision (to avoid or go forward with procreation), they all 
focus on the right not to procreate. Abortion debates loom large in our cultural and 
political landscape, and some scholars have argued that the presence of abortion-
related issues in a case often “overwhelm[s]” a court and “distort[s] the doctrine.”325 
The dominance and frequency of cases involving abortion, coupled with the lack of 
Supreme Court cases involving parties who wish to have children, renders the right 
to procreate enigmatic. In an era where 1.5% of births are the result of reproductive 
technology,326 a case directly addressing the right—and ideally, moving the doctrine 
toward a more inclusive and holistic view of reproductive choice—would be 
beneficial. 
 

2. The Right Not to Procreate 
 

In 1965, Griswold v. Connecticut became the first in a long series of cases 
addressing the right not to procreate.327 Estelle Griswold and Lee Buxton, leaders 
within the Planned Parenthood League of Connecticut, advised married people on 
the use of contraception.328 They were found guilty (as accessories) of violating a 
statute banning the use of contraception.329 The Court struck the statute as infringing 
a constitutional right of privacy.330 While the justices disagreed on the precise 

 
323 Warden, supra note 289, at 62. 
 
324 See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S. 113, 153 (1973) 
(stating that the “right of privacy . . . is broad enough to encompass a woman’s decision whether or not 
to terminate her pregnancy”); Lawrence v. Texas, 539 U.S. 558, 565 (2003) (quoting Eisenstadt, 405 
U.S. at 453). 
 
325 Mark Rienzi, Symposium: NIFLA v. Becerra – A Supreme Housecleaning Continues?, 
SCOTUSBLOG (Dec. 14, 2017), http://www.scotusblog.com/2017/12/symposium-nifla-v-becerra-
supreme-housecleaning-continues/ [https://perma.cc/2VJ9-NBB7] (arguing that the presence of 
abortion-related issues has distorted free speech doctrine). 
 
326 Number of Test-Tube Babies Born in U.S. Hits Record Percentage, REUTERS (Feb. 17, 2014), 
https://www.reuters.com/article/health-testtube-babies/number-of-test-tube-babies-born-in-u-s-hits-
record-percentage-idUSL2N0LL0A520140217 [https://perma.cc/3RQL-GB8F]. 
 
327 Griswold v. Connecticut, 381 U.S. 479 (1965). 
 
328 Id. at 480. 
 
329 Id. 
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     167 

 

 

constitutional basis of the right, the majority viewed it as emanating from a variety 
of “specific guarantees in the Bill of Rights.”331 Yet the right recognized in Griswold 
was quite limited: the Court wrote, “Would we allow the police to search the sacred 
precincts of marital bedrooms for telltale signs of the use of contraceptives? The very 
idea is repulsive to the notions of privacy surrounding the marriage relationship.”332 
While Griswold evinced new respect for reproductive rights, its rationale of 
protecting married couples in their bedrooms was not easily extendible to other 
contexts. Its focus on marriage and the physical space of the bedroom was deeply 
conservative, even as the doctrinal leap into modern substantive due process 
suggested more progressive possibilities. 

 
Eisenstadt v. Baird, decided in 1972, was more transformative.333 Like Griswold, 

it considered the constitutionality of contraception laws.334 Bill Baird, a reproductive 
rights activist, was convicted of giving an unmarried woman contraceptives in 
deliberate violation of a Massachusetts law.335 Because the law afforded married 
persons greater access to contraception than unmarried persons, the Court asked 
whether the law could survive rational basis review under the Equal Protection 
Clause.336 While avoiding a direct due process analysis, the Court commented, “If 
the right of privacy means anything, it is the right of the individual, married or single, 
to be free from unwarranted governmental intrusion into matters so fundamentally 
affecting a person as the decision whether to bear or beget a child.”337 This is 
significant for two reasons: First, it shifts the focus away from marriage. The Court 
observed that “the marital couple is not an independent entity with a mind and heart 
of its own, but an association of two individuals each with a separate intellectual and 
emotional makeup.”338 Second, it shifts the focus away from the bedroom. The right 

 
330 Id. at 485–86. 
 
331 Id. at 484. 
 
332 Id. at 485–86. 
 
333 Eisenstadt v. Baird, 405 U.S. 438 (1972). 
 
334 Id. 
 
335 Id. at 440. 
 
336 Id. at 447. 
 
337 Id. at 453. 
 



168                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

to decide presumably protects a decision not to procreate as well as a decision to 
procreate. It accompanies a person wherever she goes, such as (for example) the 
office of an abortion provider. Notably, when the Court decided Eisenstadt, it had 
already heard arguments in Roe v. Wade, which was decided the next term.339 

 
Roe v. Wade was, of course, momentous.340 It not only recognized the right to 

abortion, it also applied strict scrutiny to laws burdening that right, which it situated 
in the Due Process Clause of the Fourteenth Amendment.341 The Roe Court 
emphasized that the right of privacy, which at the time was the anchor for the right 
to abortion, included not only a woman’s right to “deci[de] whether or not to 
terminate her pregnancy,”342 but also had “some extension to activities related to 
marriage, procreation, contraception, family relationships, and child-rearing and 
education.”343 The Court protected the right to abortion, in part, because of the 
psychological harm that could befall a woman forced to bear and care for an 
unwanted child.344 Justice Stewart, concurring, noted that the right was protected 
because “‘a woman [gives] of her physical and emotional self during pregnancy and 
. . . will be affected throughout her life by the birth and raising of a child.’”345 While 

 
338 Id. 
 
339 Roe v. Wade, 410 U.S. 113 (1973). 
 
340 Id. 
 
341 Id. at 153 (“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of 
personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 
in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s 
decision whether or not to terminate her pregnancy.”). 
 
342 Id. 
 
343 Id. at 152–53 (internal citations omitted). Justice Stewart, concurring, placed the right of abortion 
among other “personal choice[s] in matters of marriage and family life” such as selecting one’s own 
partner in marriage and directing the upbringing of one’s own children. Id. at 168 (Stewart, J., 
concurring). 
 
344 Id. at 153 (“Maternity, or additional offspring, may force upon the woman a distressful life and 
future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. 
There is also the distress, for all concerned, associated with the unwanted child, and there is the problem 
of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other 
cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be 
involved. All these are factors the woman and her responsible physician necessarily will consider in 
consultation.”). 
 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     169 

 

 

this language suggests some concern for the pregnant woman’s ability to self-
determine, part of the majority opinion (troublingly) confers substantial decision-
making power on her attending physician.346 As previously noted, the Roe Court 
declined to recognize “an unlimited right to do with one’s body as one pleases.”347 
The right to abortion was against various state interests, resulting in the well-known 
(but no longer current) trimester framework.348 

 
To the extent that the right to abortion is a right to physical autonomy, it follows 

that it is a right held by the pregnant woman and not by the prospective father. In 
1976, in Planned Parenthood v. Danforth, the Court invalidated a requirement of 
spousal consent prior to abortion.349 It observed that “when the wife and the husband 
disagree on this decision, the view of only one of the two marriage partners can 
prevail.”350 And it continued, “Inasmuch as it is the woman who physically bears the 
child and who is the more directly and immediately affected by the pregnancy, as 
between the two, the balance weighs in her favor.”351 The abortion decision, 
therefore, belongs exclusively to the pregnant woman. Yet this passage does not 
answer the question that arises in disputes over frozen embryos, where the potential 
life resides in a cryobank rather than in the woman’s body. Of course, it does tell us 
that a woman could not be forced to undergo an embryo transfer and gestate the 
resulting fetus. But given the possibility of surrogacy, this would not be necessary 
for the male progenitor to exercise his procreative rights. 

 
During the later 1970s and 1980s, the Court heard several more cases involving 

abortion regulations. The Court invalidated most of the regulations, with the notable 
 

345 Id. at 170 (Stewart, J., concurring) (quoting Abele v. Markle, 351 F. Supp. 224, 227 (D.Conn. 1972)). 
 
346 Id. at 164 (“For the stage prior to approximately the end of the first trimester, the abortion decision 
and its effectuation must be left to the medical judgment of the pregnant woman’s attending 
physician.”). 
 
347 Id. at 154, citing Buck v. Bell, 274 U.S. 200 (1927). 
 
348 Id. at 154, 164–65. 
 
349 Planned Parenthood v. Danforth, 428 U.S. 52, 67-68 (1976) (“Section 3(3) requires the prior written 
consent of the spouse of the woman seeking an abortion during the first 12 weeks of pregnancy, unless 
‘the abortion is certified by a licensed physician to be necessary in order to preserve the life of the 
mother.’” (quoting MO. REV. STAT. § 559.100)). 
 
350 Id. at 71. 
 
351 Id. 



170                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

exception of those that limited funding for abortions.352 By 1991, it was clearly 
established that the right to abortion does not encompass a right to funding for 
abortion, and that the government may prefer childbirth over abortion.353 While these 
funding decisions do not directly speak to whether there is a right to funding for 
procreation (for example, via IVF), they suggest that there is not—and, of course, in 
reality there is not. While some states have required that insurance companies cover 
the cost of certain infertility treatments, by default these treatments operate like 
abortion: a woman may access them if she can pay for them herself.354 Yet perhaps, 
if the question had been whether the Constitution protects a right to funding for all 
choices surrounding procreation rather than whether it protects a right to funding for 
abortion, the debate would have unfolded differently—especially given the relatively 
deeper respect for reproductive autonomy that existed from the time Roe was decided 
until the late 1980s.355 

 
When Planned Parenthood v. Casey reached the Supreme Court in 1992, many 

expected Roe v. Wade to be overruled.356 Instead, the joint opinion authored by 
Justice O’Connor and joined by Justices Kennedy and Souter reaffirmed Roe’s 
“essential holding,”357 even as it eroded many of the strong protections Roe had 

 
352 Cynthia Soohoo, Hyde-Care for All: The Expansion of Abortion-Funding Restrictions Under Health 
Care Reform, 15 CUNY L. REV. 391, 395-96 (2012). Those that limited funding included Beal v. Doe, 
432 U.S. 438 (1977), Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980). 
Id. (also citing Linda J. Wharton et al., Preserving the Core of Roe: Reflections on Planned Parenthood 
v. Casey, 18 YALE J.L. & FEMINISM 317, 324, 324 n.32 (2006)). 
 
353 Soohoo, supra note 352, at 408 (“Relying on Maher, in Webster and Rust the Supreme Court rejected 
the claim that ‘unequal subsidization’ violated the Constitution, finding instead that the government can 
‘make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the 
allocation of public funds.’”). See also Webster v. Reproductive Health Services, 492 U.S. 490 (1989) 
and Rust v. Sullivan, 500 U.S. 173 (1991). 
 
354 Marissa A. Mastroianni, Bridging the Gap Between the “Have” and the “Have Nots”: The ACA 
Prohibits Insurance Coverage Discrimination Based Upon Infertility Status, 79 ALB. L. REV. 151, 163–
64 (2015-16). Health insurance companies typically do not cover treatments for infertility. Michelle J. 
Bayefsky et al., Compensation for Egg Donation: A Zero-Sum Game, 105 FERTILITY & STERILITY 1153, 
1153–54 (2016). While fifteen states do require that insurance companies cover such treatments, most 
of them exclude IVF. Id. 
 
355 Webster signaled the end of this respect. 
 
356 Wharton et al., supra note 352, at 324–25. 
 
357 Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     171 

 

 

provided.358 The joint opinion, importantly, contained expansive language about the 
liberty component of the Due Process Clause. Liberty, it explained, protects choices 
about procreation because those choices are “central to personal dignity and 
autonomy[.]”359 Liberty also protects “the right to define one’s own concept of 
existence, of meaning, of the universe, and of the mystery of human life.”360 This 
passage, which is incorporated into the majority opinion in Lawrence v. Texas,361 
evinces a deep respect for reproductive self-determination. 

 
The undue burden standard developed in Casey, which remains the current 

standard for assessing abortion regulations, has been applied and elaborated in 
several subsequent cases.362 While it has at times appeared substantially weakened—
to the point that some have equated it with rational basis review363—it was reaffirmed 
in the 2016 decision of Whole Woman’s Health v. Hellerstedt.364 There, the Court 
made clear that the standard is more stringent than rational basis review as it 
invalidated two TRAP (“Targeted Regulation of Abortion Providers”) laws that 
imposed an undue burden on the right to a pre-viability abortion.365 Casey’s 
protections, in other words, retained their power, albeit without robust theorization. 
As Linda Greenhouse and Reva Siegel have explained, although “Whole Woman’s 
Health does not expressly discuss the constitutional values at the core of the abortion 
right . . . [c]oncern for protecting women’s liberty, equality, and dignity guides the 

 
358 Wharton et al., supra note 352, at 330 (“[T]he joint opinion also altered key aspects of Roe v. Wade, 
rejecting Roe’s strict scrutiny standard as well as its trimester framework and adopting a more 
permissive ‘undue burden’ standard.”). 
 
359 Casey, 505 U.S. at 851. 
 
360 Id. 
 
361 Lawrence v. Texas, 539 U.S. 558, 574 (2003). 
 
362 See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000). 
 
363 Gonzales v. Carhart, 550 U.S. 124 (2007). See Linda Greenhouse & Reva B. Siegel, The Difference 
a Whole Woman Makes: Protection for the Abortion Right after Whole Woman’s Health, 126 YALE 
L.J. F. 149, 149 (2016) (“Opponents of the abortion right asserted that after the Court decided Gonzales 
v. Carhart, upholding the Partial Birth Abortion Ban Act, the Casey framework meant little more than 
rational basis deference to legislative decision making.”). 
 
364 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 
 
365 Whole Woman’s Health, 136 S. Ct. at 2292; Greenhouse & Siegel, supra note 363, at 150 (stating 
that Whole Woman’s Health “repudiates rational-basis claims about Casey”). 



172                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

majority’s [analysis].”366 More recently, in June Medical Services v. Russo, the Court 
was deeply divided and failed to produce a majority opinion.367 While Casey remains 
controlling, different justices read Casey’s joint opinion differently and the Chief 
Justice (who provided the fifth vote in June Medical) read it more narrowly than the 
plurality.368 Ultimately, while these cases on the right to avoid procreation are 
relevant to frozen embryo disputes, the undue burden standard—organized as it is 
around the pre- and post-viability time periods—does not provide direct guidance. 

 
Examining the right to procreate cases together with the right to avoid 

procreation cases, it becomes clear that the Court’s vision of reproduction is binary, 
narrow, and insensitive to context. Parties are perceived as either wanting to 
procreate or wanting to avoid procreation, and courts are inattentive to the fluidity 
and complexity of pregnancy and pregnancy intentions. Ultimately, the reproductive 
rights doctrine protects two discrete, negative rights that are viewed by most judges 
as operating in a binary opposition. The primary beneficiaries of these relatively 
weak rights are those who already have the privilege and financial means to make 
choices about whether, when, and how they wish to have children. 
 

III. Moving Beyond Binaries: Reproductive Indeterminacy 
 

Given the binarism, narrowness, and non-contextual nature of judicial thinking, 
Part III deploys the feminist work described in Part I to deconstruct the discursive 
structures described in Part II and move us toward a more expansive understanding 
of reproduction and reproductive rights. Judicial discussions of reproduction are not 
reflective of its fluidity, complexity, and indeterminacy. Reproductive potential is 
not captured by either/or statements because infertility is difficult to diagnose and 
even with treatment outcomes are highly uncertain. Reproductive intentions are not 
experienced in either/or terms because procreative plans are highly contextual. It 
matters whether, when, and how one becomes a parent. Similarly, reproductive rights 
should not be limited to either the right to procreate or the right to avoid procreation, 
especially when both are narrow, negative rights and the former is doctrinally 
undeveloped. Using the work of postmodern feminists, we can deconstruct binary 
conceptions about reproduction and reproductive rights; using the work of 
reproductive justice advocates, we can expand our understanding of the reproductive 

 
366 Greenhouse & Siegel, supra note 363, at 163. 
 
367 June Medical Services v. Russo, 140 S. Ct. 2103 (2020). 
 
368 Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     173 

 

 

experience and reproductive rights. These are not binary, but in fact exist along a 
multi-dimensional spectrum. 

 
Part III is divided into two sections: The first explores the complexity and 

uncertainty of reproduction, with a focus on IVF and related reproductive 
technologies. It attempts to provide a window into the lived experience of the parties 
involved in frozen embryo disputes, including the uncertainty that lies ahead of them 
if they are able to either use the contested embryos or pursue further treatment. It 
shows the level of investment—physical, emotional, and in most cases financial—
required of women going through IVF and (if successful) pregnancy and childbirth. 
The second section draws on the feminist work described in Part I to argue in favor 
of moving beyond the binaries described in Part II. Postmodern feminist theory 
reveals that the binaries judges so often embrace in discussing reproduction are not 
reflective of reality. Reproductive justice scholarship reminds us to attend to the lived 
experience of reproduction, which is full of complexity, contingency, and 
indeterminacy. Ultimately, Part III asserts that by cultivating a deeper understanding 
of reproduction, we can move toward a more expansive and holistic vision of 
reproductive rights. 

 
A. The Lived Experience of Embryo Creation and Use  

 
Virtually all reproductive endeavors are characterized by complexity and 

indeterminacy, and the IVF process (used by all the couples involved in the cases 
described in Section II.A) is especially so. But it is important to understand that IVF 
is not the beginning of fertility treatment—first, there is the diagnosis of infertility, 
and then there are oftentimes lesser interventions like ovulation induction or 
intrauterine insemination.369 This section reviews just some of the complexity and 
uncertainty that accompany the diagnosis of infertility, some of the less invasive 
treatments, the IVF and embryo creation processes, and finally pregnancy, childbirth, 
and the neonatal period. It reveals that there are no clear categories or predictable 
outcomes. Patients seeking fertility treatment engage in sustained decision-making 
over lengthy periods of time, and the decisions they must make are highly contextual 
and rest on information that is constantly evolving. Testing often leads to more 
testing, and may never reach a definitive conclusion. As mentioned earlier,370 a 

 
369 George Kofinas, 3 Fertility Treatment Options to Consider Before You Try IVF, KOFINAS FERTILITY 
GRP. (Jan. 2, 2019), https://www.kofinasfertility.com/patient-info/3-fertility-treatment-options-before-
ivf [https://perma.cc/79B8-WA65]. 
 
370 See supra Section I.C. 



174                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

woman who has used IVF to achieve a much-desired pregnancy might, if faced with 
a devastating diagnosis, choose abortion. Reproductive potential (e.g., fertile or not), 
intentions (e.g., to procreate or not), and outcomes (e.g., parent or not) are not binary 
or simplistic, despite their treatment in judicial opinions. This section—in 
recognition of lessons learned from postmodern feminism and reproductive justice—
explores their complexities. 

 
Reproductive potential is not fully captured by the terms fertility, infertility, or 

sterility—it exists on a spectrum, is fluid over time, and is difficult to pinpoint. This 
makes reproductive decision-making particularly challenging, including in the IVF 
context where patients must constantly consider whether they have the will and 
means to go forward by investing increasingly greater levels of physical, emotional, 
and financial resources. Patients (if they are well-informed) make these decisions 
with full knowledge that reproductive outcomes are never guaranteed. An example 
from one of the cases discussed in Section II.A is instructive: the doctor of a woman 
whose retrieval had produced eighteen eggs—twelve of which were successfully 
inseminated and five of which grew as desired over the following three days—
estimated that if they had done a fresh transfer of the embryos at that point, “she 
would have had a 25 percent chance of a single live birth.”371 This reminds us that 
one cannot know in advance whether fertility medications will produce gametes, 
gametes will create embryos, embryos will lead to pregnancy, or pregnancy will 
result in a live birth. Indeterminacy and contingency are the norms in reproduction. 

 
To understand the diagnosis of infertility, which led many of the parties in the 

cases from Section II.A to IVF, it is important to understand the terminology used to 
describe reproductive potential. Perhaps reflecting the Western impulse to organize 
the world into binary oppositions, the flagship journal of the American Society for 
Reproductive Medicine (ASRM) is titled Fertility and Sterility—although much of 
its content relates to the treatment and exploration of infertility.372 Within the pages 
of Fertility and Sterility, one finds The International Glossary on Infertility Care and 
Fertility Care, 2017 (“The Glossary”), which provides working definitions of 
fertility, sterility, and infertility.373 According to The Glossary, fertility refers to the 
“capacity to establish a clinical pregnancy;” sterility is a “permanent state of 

 
371 Findley v. Lee, No. FDI-13-780539, 2016 WL 270083, at *10 (2016). Note that this was a high 
number of eggs to retrieve for a forty-one-year-old woman. Id. 
 
372 Aims & Scope, FERTILITY & STERILITY, https://www.fertstert.org/content/aims 
[https://perma.cc/RK64-W84C]. 
 
373 Zegers-Hochschild, supra note 1. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     175 

 

 

infertility;” and infertility is a “disease characterized by the failure to establish a 
clinical pregnancy after 12 months of regular, unprotected sexual intercourse or due 
to an impairment of a person’s capacity to reproduce either as an individual or with 
his/her partner.”374 The authors of The Glossary warn that “it is crucial to avoid the 
assumption that a diagnosis of infertility implies sterility.”375 However, as Section 
II.A illustrated, courts adjudicating frozen embryo disputes often implicitly make the 
opposite assumption—that anything short of sterility counts as fertility (i.e., suggests 
a reasonable path to parenthood). Ultimately, an assumption in either direction is 
problematic. 

 
Even for fertile couples, there is a substantial amount of uncertainty. The 

monthly success rate for a fertile couple to conceive is only about 20%.376 For the 
12–13% of couples who experience infertility,377 the success rate is much lower than 
that without treatment.378 With treatment, the chances of success vary widely 
depending on the patient and type of cycle (for example, the average success rate in 
a cycle using frozen embryos is higher than in a cycle using fresh embryos379), so it 
is almost meaningless to give an overall success rate for IVF. While the Society for 
Assisted Reproductive Technology (SART) reports that “[t]he average live delivery 

 
374 Id. at 399, 401, 405. 
 
375 Id. at 395. 
 
376 SOC’Y FOR ASSISTED REPRODUCTIVE TECH., ART Q&A, supra note 53; Ovulation Induction and 
Intrauterine Insemination, Overview, YALE MED., https://www.yalemedicine.org/conditions/ovulation-
induction-intrauterine-insemination [https://perma.cc/2F5Y-4294] (“‘[I]t’s important to note that the 
chance of any pregnancy in a young, healthy couple with no fertility issues is, at best, about 20 percent 
each month.’”). 
 
377 Understanding Fertility: The Basics, OFF. OF POPULATION AFFS., https://opa.hhs.gov/reproductive-
health/understanding-fertility-basics [https://perma.cc/9FUY-W34K]. I have focused on couples in this 
statistic, because the parties involved in the cases I discuss were couples when they created the embryos 
in question. Notably, as many as 20-30% of this 12-13% receive no clear diagnosis, but are instead told 
that they have “unexplained infertility.” Heather Huhman, 5 Frustrating Facts About Unexplained 
Infertility . . . and How to Cope, HUFFPOST BLOG (June 23, 2015), https://www.huffpost.com/entry/5-
frustrating-facts-about_b_7632640 [https://perma.cc/V9EZ-CYCD]. 
 
378 SOC’Y FOR ASSISTED REPRODUCTIVE TECH., ART Q&A, supra note 53; Gurevich, supra note 50. 
 
379 IVF Delivery Rate / Cycle (infographic), Deliveries, SOC’Y FOR ASSISTED REPRODUCTIVE TECH., 
https://www.sart.org/globalassets/__sart/infographics/more-deliveries.png [https://perma.cc/J5YP-
F5HU]. The rate of success with frozen embryos is close to 50%, whereas the rate using fresh embryos 
is close to 20%. Id. 



176                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

rate for IVF in 2005 was 31.6% per retrieval,”380 their webpage on success rates 
provides little overall guidance.381 Instead, their website offers patients a calculator 
called “What are my chances with ART?”382 It asks the patient to report her age, 
height, weight, prior pregnancies (including ectopic and biochemical pregnancies, as 
well as pregnancies that ended in therapeutic or spontaneous abortion, stillbirth, or 
live birth), prior full-term births (including stillbirths and live births), type of 
infertility diagnosis, and whether she plans to use her own eggs or donor eggs.383 The 
calculator then predicts the chances of a live birth after one, two, and three cycles of 
treatment. The website highlights that it does “not take into account all the possible 
factors that may influence the probability of a live birth” and that the estimates may 
or may not apply in a given case.384 

 
Complicating the analysis is that not only are there many different reasons for 

infertility, but it is often difficult for doctors to identify the exact reason a couple has 
not conceived.385 About 25% of couples having fertility issues are diagnosed with 
“unexplained infertility.”386 Some of them, without treatment, will conceive and give 
birth;387 others will not. Following a diagnosis of infertility, people often assume IVF 
is the next step (assuming the resources are available), but IVF is not always 

 
380 Does In Vitro Fertilization Work?, SOC’Y FOR ASSISTED REPRODUCTIVE TECH., 
https://www.sart.org/patients/frequently-asked-questions/ [https://perma.cc/E9V4-F4WL] (“The 
average live delivery rate for IVF in 2005 was 31.6 percent per retrieval – a little better than the 20 per 
cent chance in any given month that a reproductively healthy couple has of achieving a pregnancy and 
carrying it to term.”). It should be noted that since the 1980s, SART has collected data on IVF outcomes. 
Id. Since the 1990s, fertility clinics have been federally mandated to report their IVF outcomes. Fertility 
Clinic Success Rate and Certification Act of 1992, 42 U.S.C. § 263a-1. 
 
381 SOC’Y FOR ASSISTED REPRODUCTIVE TECH., ART Q&A, supra note 53; SOC’Y FOR ASSISTED 
REPRODUCTIVE TECH., Deliveries, supra note 379.  
 
382 What Are My Chances with ART?, SOC’Y FOR ASSISTED REPRODUCTIVE TECH., 
https://www.sartcorsonline.com/Predictor/Patient/ [https://perma.cc/GQ7F-EADK]. 
 
383 Id. 
 
384 Id. 
 
385 The SART calculator includes the following options for describing an infertility diagnosis: male 
factor, endometriosis, ovulation disorder, diminished ovarian reserve, uterine factors, tubal ligation, 
tubal hydrosalpinx, other tubal problems, two “other” categories, and “unexplained.” Id. 
 
386 Gurevich, supra note 50. 
 
387 Id. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     177 

 

 

necessary or appropriate. If a couple is trying to establish a pregnancy immediately 
(rather than preserve embryos for later use, for example after chemotherapy), they 
may pursue a different intervention like ovulation induction followed by timed 
intercourse.388 This involves using fertility medications and monitoring follicle 
growth via ultrasound.389 If and when a mature follicle develops, ovulation is 
triggered and the couple is directed to engage in intercourse on a timed schedule.390 
This method, some clinics report, can bring infertile couples up to a 20–25% success 
rate per cycle.391 

 
If a couple decides to pursue IVF, they will (assuming treatment is successful) 

proceed through at least five phases.392 Each phase has its own unique challenges 
and as Elissa Strauss, who writes articles and blog posts about parenthood, explained 
in a piece about IVF, “[E]ven the highest probability of success is not enough to 
combat the vulnerability one feels when pumped full of hormones and a longing to 
conceive.”393 She also observed that some women diagnosed with infertility “are still 
embarrassed or ashamed to share the news with family and friends[, because of] 
stigma rooted in one of the oldest patriarchal tropes in the book: a woman’s worth 
lies in the fecundity of her womb.”394 As difficult as IVF is to pursue, it is surely 
more difficult without a support system. The first phase of IVF is pre-cycle 
preparation. This phase can be extensive and typically includes blood testing, 
physical examinations, and taking oral contraception to “decrease the chances of 
forming cysts,” “synchronize the egg follicles,” and “allow the physician and patient 
to control the timing of the cycle.”395 

 
388 Kofinas, supra note 369. 
 
389 Ovulation Induction & Timed Intercourse, VIOS FERTILITY INST., https://viosfertility.com/infertility-
treatments/basic/ovulation-induction/ [https://perma.cc/H3L2-2LFG]; Kofinas, supra note 369. 
 
390 Timed Intercourse: The Basics, SHADY GROVE FERTILITY, 
https://www.shadygrovefertility.com/treatments-success/basic-treatments/timed-intercourse 
[https://perma.cc/J24U-A8KA]. 
 
391 YALE MED., supra note 376. 
 
392 See IVF Process, ASPIRE FERTILITY (2021), https://www.aspirefertility.com/fertility-
treatment/ivf/ivf-process [https://perma.cc/32RU-87L7]; see also IVF Treatment, CCRM FERTILITY 
(2021), https://www.ccrmivf.com/services/ivf-fertilization/ [https://perma.cc/8S44-EH4E].  
 
393 Strauss, supra note 57. 
 
394 Id. 
 



178                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

The second phase is ovarian stimulation. Whereas outside the IVF context, one 
cycle would typically produce one mature egg, in the IVF context, one cycle is 
intended to develop “as many mature eggs as possible.”396 To that end, the patient 
injects herself with a variety of hormones (including follicle-stimulating hormone 
(FSH) and luteinizing hormone (LH)) for around one to two weeks.397 This requires 
some training, and specialty pharmacies make videos available online to guide 
patients through the injections.398 Elissa Strauss writes of this phase: 

 
There are regular early morning visits to the doctor’s office, where 
blood is drawn and vaginal ultrasounds are administered—often by 
perfect strangers. There are giant boxes of syringes, needles, 
powders[,] and diluents sent directly to your house, and you—who 
has never shot a needle into anyone before—are expected to mix, 
measure[,] and self-administer these crucial and expensive drugs on 
a regular basis.399 

 
The medications used in IVF can cause “headaches, mood swings, abdominal 

pain, hot flashes, abdominal bloating, [and in rare cases] ovarian hyperstimulation 
syndrome (OHSS).”400 Doctors must carefully monitor the ovaries via transvaginal 
ultrasounds and also track hormone levels via blood tests.401 This second phase 
concludes with an injection of human chorionic gonadotropin (hCG), which helps 
the eggs mature and prompts ovulation.402 

 
395 ASPIRE FERTILITY, supra note 392. 
 
396 See ASPIRE FERTILITY, supra note 392. See, e.g., Fertility Injection Training Videos, AVELLA 
SPECIALTY PHARMACY (2021), https://www.avella.com/fertility-injection-training-videos 
[https://perma.cc/JZG6-PNL7]; Fertility Medication Information, CCRM FERTILITY (2021), 
https://www.ccrmivf.com/medication-teaching/ [https://perma.cc/38AZ-2W6R] [hereinafter CCRM 
FERTILITY, Fertility Medication Info.].  
 
397 ASPIRE FERTILITY, supra note 392; CCRM FERTILITY, Fertility Med. Info., supra note 396. 
 
398 See, e.g., AVELLA SPECIALTY PHARMACY, supra note 396; CCRM FERTILITY, Fertility Medication 
Info., supra note 396. 
 
399 Strauss, supra note 57. 
 
400 AM. PREGNANCY ASS’N, supra note 4. 
 
401 Id. 
 
402 ASPIRE FERTILITY, supra note 392. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     179 

 

 

The third phase—the egg retrieval—must be carefully timed to occur at exactly 
the right interval after the injection of hCG (i.e., just before ovulation).403 In this 
phase, a needle guided by ultrasound is inserted into each ovary to drain the “fluid 
and eggs from each mature follicle.”404 The retrieval is considered minor surgery,405 
and it is associated with a variety of risks, including “bleeding, infection, and damage 
to the bowel or bladder.”406 After an egg retrieval, patients may experience, among 
other things, “mild cramping [and/or] bloating, constipation, [and] breast 
tenderness.”407 The fourth phase is fertilization and embryo development. Once the 
embryologist has sorted, identified, and prepared the eggs, she fertilizes them using 
a technique called intracytoplasmic sperm injection (ICSI).408 The embryos are then 
grown in the lab for five or six days,409 at which point there can be genetic testing if 
the patient wishes.410 The fifth and final phase can be immediate embryo transfer, 
cryopreservation of the embryos for later use (which is required for genetic testing), 
or some combination of the two.411 

 
To cryopreserve embryos, an embryologist replaces the water in their cells with 

cryoprotectant and then flash-freezes them through a process called vitrification, 
which involves quick cooling to avoid the formation of ice crystals.412 Embryo 

 
403 See id. 
 
404 Id. 
 
405 AM. PREGNANCY ASS’N, supra note 4. 
 
406 Id. 
 
407 Id. 
 
408 See ASPIRE FERTILITY, supra note 392. 
 
409 Id. 
 
410 See CCRM FERTILITY, IVF Treatment, supra note 392. For a discussion of some of the possibilities 
for genetic testing, see Jessica Knouse, Reconciling Liberty and Equality in the Debate over 
Preimplantation Genetic Diagnosis, 2013 UTAH L. REV. 107 (2013). 
 
411 See ASPIRE FERTILITY, supra note 392. 
 
412 Jon Johnson, Embryo Freezing: What You Need to Know, MED. NEWS TODAY (Mar. 13, 2019), 
https://www.medicalnewstoday.com/articles/314662 [https://perma.cc/AWG4-Q6HY]. Embryos can 
also be preserved through a slow freezing process, but “[s]ome research indicates that, compared with 
slow freezing, vitrification increases an embryo’s chance of survival, both at the freezing stage and 



180                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

transfer, whether it occurs immediately after egg retrieval or following freezing and 
thawing, is a short procedure with “no anesthesia or recovery time.”413 A puff of air 
through a catheter pushes the embryo(s) into the uterus.414 About two weeks later, a 
blood test examining the patient’s hCG level will “determine if implantation was 
successful.”415 HCG levels should continue to rise in early pregnancy, so blood 
testing will be repeated every few days.416 If the pregnancy continues, at around five 
weeks an ultrasound will be performed.417 If everything appears normal on the 
ultrasound, the patient will be referred to her obstetrician.418 

 
Pregnancy and childbirth themselves are, of course, complex and full of 

indeterminacy. In addition to all of the normal difficulties of pregnancy—e.g., 
morning sickness (nausea and vomiting); body aches; dizziness; constipation; 
nosebleeds; bladder control problems; swollen face, hands, and/or ankles; numb 
and/or tingling hands; leg cramps; constipation; hemorrhoids; fatigue; heartburn; 
difficulty sleeping; and breast tenderness419—there can be more serious 
complications, including but not limited to anemia, high blood pressure, gestational 
diabetes, and depression.420 And, of course, there are no guarantees that a pregnancy 
will result in a live birth: 10-15% of pregnancies end in miscarriage—i.e., loss before 

 
during thawing.” Id. Today, vitrification seems to have become standard. See CCRM FERTILITY, IVF 
Treatment, supra note 392. 
 
413 ASPIRE FERTILITY, supra note 392. 
 
414 Id. 
 
415 Id. 
 
416 Id. 
 
417 Id. 
 
418 Id. 
 
419 See Off. on Women’s Health, Body Changes and Discomforts, U.S. DEP’T OF HEALTH & HUM. 
SERVS. (Jan. 30, 2019), https://www.womenshealth.gov/pregnancy/youre-pregnant-now-what/body-
changes-and-discomforts [https://perma.cc/E8YT-RYEP]. 
 
420 See Off. on Women’s Health, Pregnancy Complications, U.S. DEP’T OF HEALTH & HUM. SERVS. 
(Apr. 19, 2019), https://www.womenshealth.gov/pregnancy/youre-pregnant-now-what/pregnancy-
complications [https://perma.cc/54P7-KPYV]. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     181 

 

 

twenty weeks.421 In the first six weeks of pregnancy, the risk of miscarriage is 
highest.422 In weeks six to twelve, the risk drops to 10% or less, and in weeks thirteen 
to twenty, to 5% or less.423 Furthermore, one in 160 pregnancies end in stillbirth—
i.e., loss at or after twenty weeks.424 Finally, childbirth and the period following 
childbirth are also uncertain. Neonatal death (within the first four weeks after birth) 
“happens in about 4 in 1,000 babies (less than 1 percent) each year in the United 
States.”425 Infant mortality—i.e., “the death of an infant before his or her first 
birthday”—accounted for 5.6 deaths per 1,000 live births in the United States in 
2019.426 And, notably, the maternal mortality rate in the United States was a 
shockingly high 17.4 per 100,000 pregnancies in 2018.427 

 
In sum, reproduction—from the diagnosis of infertility, to treatments such as 

IVF and embryo creation, to pregnancy, childbirth, and beyond—is infused with 
indeterminacy. While our legal discourse, as exemplified by the frozen embryo 
disputes described above,428 glosses over this indeterminacy, postmodern feminism 
and reproductive justice work remind us to attend to the lived experience of 
reproduction. Acknowledging the indeterminacy and honoring lived experience, as 

 
421 Rena Goldman, A Breakdown of Miscarriage Rates by Week, HEALTHLINE (Oct. 3, 2018), 
https://www.healthline.com/health/pregnancy/miscarriage-rates-by-week [https://perma.cc/7VN9-
YEHT]. 
 
422 Id. 
 
423 Id. It should be noted that there is some discrepancy among the numbers that are offered by various 
sources. 
 
424 Nat’l Ctr. on Birth Defects & Dev. Disabilities, What Is Stillbirth?, CDC (Nov. 16, 2020), 
https://www.cdc.gov/ncbddd/stillbirth/facts.html [https://perma.cc/FF79-9U9T]. 
 
425 Neonatal Death, MARCH OF DIMES (Oct. 2017), 
https://www.marchofdimes.org/complications/neonatal-death.aspx [https://perma.cc/9P5T-NMFJ]. 
 
426 Div. of Reproductive Health, Nat’l Ctr. for Chronic Disease Prevention & Health Promotion, 
Reproductive Health, Maternal and Infant Health, Infant Mortality, CDC (Sept. 8, 2021), 
https://www.cdc.gov/reproductivehealth/maternalinfanthealth/infantmortality.htm 
[https://perma.cc/MA24-RLBE]. 
 
427 Eugene Declercq & Laurie Zephyrin, Maternal Mortality in the United States: A Primer, COMMW. 
FUND (Dec. 16, 2020), https://www.commonwealthfund.org/publications/issue-brief-
report/2020/dec/maternal-mortality-united-states-primer [https://perma.cc/6AK7-ME26]. 
 
428 See supra Section II.A. 



182                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Section III.B will illustrate, creates a positive space in which to imagine a more 
robust rights jurisprudence. 
 

B. Expanding Our Vision of Reproductive Status and Rights 
 

This section draws on the feminist work described in Part I to argue that legal 
discourse around reproduction should move beyond the binaries described in Part II. 
Postmodern feminist theory reveals that the either/or mindset embedded in much of 
our reproductive rights doctrine is inconsistent with the lived experience of 
reproduction. Parties involved in frozen embryo disputes illustrate this disjunction: 
rarely can they be accurately described as definitively “fertile” or “sterile,” and rarely 
can their wishes be accurately captured through the assertion of a “right to procreate” 
or a “right to avoid procreation.” Rather, their reproductive potential is fluid and 
uncertain, and their reproductive intentions are complex and contingent. Once 
postmodern theory has deconstructed these false binaries and revealed the categories 
to be inaccurate, reproductive justice work offers holistic solutions for reimagining 
our rights and discourse. Attention to context—whether, when, and how one wishes 
to form a family—and respect for lived experience are at the core of reproductive 
justice work. Rather than thinking of reproductive rights as limited to two 
possibilities within a binary opposition, we ought to understand them as existing 
along a multi-dimensional spectrum. 

 
Postmodern theory, as described in Section I.A, teaches us that binary systems 

suppress diversity. Courts are effectively suppressing diversity when they describe 
reproductive potential by reference to either fertility or sterility, reproductive intent 
by reference to either procreation or non-procreation, and reproductive rights as 
limited to either a right to procreate or a right to avoid procreation. Beginning with 
reproductive potential, courts are quick to label parties as either having or not having 
“a reasonable possibility of achieving parenthood [without the contested 
embryos].”429 But, in reality, the chances of achieving parenthood (with or without 
the embryos) is often highly indeterminate. The point is not that parties should 
necessarily be allowed to use contested embryos; rather, it is that the judicial rhetoric 
around reproductive potential—by imposing a false sense of certainty—is reductive, 
dismissive, and ultimately harmful to the surrounding doctrine. By forcing all aspects 
of reproduction—potential, intentions, and rights—into either/or categories, judges 
miss crucial context: just as reproductive potential is fluid, complex, contingent, and 

 
429 Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992). 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     183 

 

 

indeterminate, reproductive intention and, by extension, reproductive rights can be 
as well. 

 
Both postmodern theory and reproductive justice advocacy focus on the 

importance of attending to context and building from lived experience. Here, 
attending to context means allowing all people to decide “if, when, and how” to 
become parents and form families;430 building from lived experience means 
surfacing the complexity and indeterminacy of reproduction. As Mari Matsuda long 
ago explained: “The refusal to acknowledge context—to acknowledge the actual 
lives of human beings affected by a particular abstract principle—has meant time 
and again that women’s well-grounded, experiential knowledge is subordinated to 
someone else’s false abstract presumptions.”431 Our legal discourse around 
reproduction must be reformed to acknowledge that reproductive decisions are 
highly contextual—people do not simply want to be or not be parents; they want to 
be or not be parents under certain circumstances. People’s physical, emotional, and 
financial resources, among others, evolve over time, along with their family status, 
their intentions, and their experiences. Judicial opinions that reduce the world to a 
set of binary oppositions do not truly comprehend reproduction. 

 
Finally, both postmodern theory and reproductive justice advocacy appreciate 

that our existing reproductive rights are inadequate. Two narrowly framed options—
a right to procreate and a right to avoid procreation (both of which are narrow, 
negative rights, and the former of which is doctrinally undeveloped)—can provide 
only de minimus protection. Rather than thinking of reproductive rights as operating 
in a binary system, we should recognize that they exist along a spectrum that is both 
rich and multi-dimensional. One person, over the course of her lifetime (or even, in 
some cases, over the course of a single cycle of fertility treatment or over the course 
of a single pregnancy), may wish to make decisions along the entire spectrum. These 
decisions may entail uncertainty, and they will necessarily often be made without 
perfect knowledge of their consequences. There are many ways in which 
reproductive rights can be re-conceptualized to be more attentive to context. 

 
430 IF/WHEN/HOW, supra note 42 (“Reproductive justice will exist when all people can exercise the 
rights and access the resources they need to thrive and to decide if, when, and how to create and sustain 
their families with dignity, free from discrimination, coercion, or violence.”). See also MICHELE 
GOODWIN, POLICING THE WOMB: INVISIBLE WOMEN AND THE CRIMINALIZATION OF MOTHERHOOD 169 
(2020) (suggesting a “Reproductive Justice New Deal or Bill of Rights” that would include “the right 
to decide if, when, how, or not to procreate”). 
 
431 Mari J. Matsuda, Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist 
Critique of Rawls’ Theory of Justice, 16 N.M. L. REV. 613, 619 (1986). 



184                      COLUMBIA JOURNAL OF GENDER AND LAW                   42.1  

Professor Yvonne Lindgren has, for example, argued in the abortion setting for a 
shift away from the narrow focus on decision-making and toward a broader 
understanding of abortion as an aspect of dignity and healthcare.432 This shift, she 
explains, would help to ensure “the social, financial, political, and legal conditions 
required to make genuine choices about reproduction.”433 Such shifts in context can 
have deep significance. 

 
Ultimately, there are no easy answers in frozen embryo disputes. 

Acknowledging this reality would be a step in the right direction. In writing opinions, 
judges ought to reframe the discourse around reproduction to be more honest and 
accurate. This would entail both dropping the pretense of certainty (a judge’s 
pronouncement that someone has a “reasonable” path to parenthood does not make 
it so) and delving into the reproductive processes—both past and future, from IVF 
to pregnancy and childbirth—that parties involved in frozen embryo disputes 
experience. Understanding the full context of the parties’ circumstances, medical and 
otherwise, is critical to rendering an informed decision. In addition to reframing the 
discourse around reproduction, judges ought to reimagine the universe of 
reproductive rights. The possible rights claims should be reflective of the possible 
intentions, which are many and varied, and the rights themselves should be 
accessible to everyone regardless of their resources. These reforms will not lead to 
simple tests that produce simple outcomes, but admitting that reproduction is in fact 
complex, indeterminate, and irreducible—despite judges’ best efforts—will create 
space for a more capacious understanding of reproductive rights. Frozen embryo 
disputes, positioned as they are at the intersection of the existing rights binary, are a 
perfect place to focus our reform efforts. 
 

CONCLUSION 
 

Reproduction, as a lived experience, is complex and indeterminate. Judicial 
discourse around reproduction, in contrast, proceeds from a premise that 
reproductive potential and intentions—and, by extension, rights—can be captured 
by binary categories. Litigants in frozen embryo disputes are typically viewed as 
either fertile or sterile, as trying to either become parents or avoid parentage, and as 
asserting a right to either procreate or avoid procreation. But these are rarely accurate 
descriptors, given that—by the point of litigation—the parties may have experienced 

 
432 Yvonne Lindgren, From Rights to Dignity: Drawing Lessons from Aid in Dying and Reproductive 
Rights, 2016 UTAH L. REV. 779 (2016). 
 
433 Id. at 787 n.23. 



42.1                    COLUMBIA JOURNAL OF GENDER AND LAW                     185 

 

 

months or years of reproductive indeterminacy. Often, the party seeking to use the 
embryos is neither fertile nor sterile, but infertile—a status that is inherently 
uncertain and in between. Often, it is difficult to diagnose and treat infertility, and it 
can be nearly impossible to predict a given patient’s chances of success. Just as the 
party seeking to use the embryos may be neither fertile nor sterile, her intentions may 
not be as simple as trying to become a parent. Often (but not always), it makes a 
difference to a party whether she might become a genetic parent, a gestational parent, 
or an adoptive parent. And often (but not always), it makes a difference whether 
becoming a parent will risk her health or the health of her potential child. Context 
matters. 

 
To describe the parties involved in frozen embryo disputes as asserting a right 

“to procreate” or “to avoid procreation” trivializes the complexity of their 
circumstances. To assume that a litigant experiencing infertility has a “reasonable” 
path to parenthood without the embryos is to ignore the reality that, even if she has 
the resources (physical, emotional, and financial) to undergo further treatment, there 
is no guarantee that it will produce gametes, that the gametes will create embryos, 
that the embryos will lead to pregnancy, or that the pregnancy will result in 
childbirth. Again, the point is not that all parties who want embryos should be 
granted their use; the point is that judicial rhetoric, by erasing the complexity and 
indeterminacy, offers a disappointingly limited vision of reproduction and 
reproductive rights. Once we move beyond the binaries, we will be able to imagine 
a new doctrine in which reproductive rights exist along a multi-dimensional 
spectrum that is sensitive to context. Such a doctrine would promote access to the 
social, financial, and systemic resources necessary for true choice.