By John A. Robertson, Law School, University of Texas at Austin
A new twist on frozen embryo litigation is now before a Dallas probate court facing what to do with 11 frozen embryos after the parents were murdered. They left no will and gave no instructions to the fertility clinic for disposition if they both died. Under the Texas intestacy statute the only heir is a two year old boy. The Master in Chancery appointed by the Probate Court has recommended that the embryos be maintained by the clinic until the two year old heir is 18, at which time he would acquire all rights to their disposition.
Since there is no party asserting a claim over the embryos and their disposition will not affect other estate issues, the Master’s well-reasoned recommendations are likely to be followed by the probate court. A key point is that there are no Texas or United States cases involving inheritance of frozen embryos when both parties have died and left no instructions with the clinic or in a will. Almost all litigation in this area involves divorcing couples who want a different disposition than that to which they had agreed (A.Z. v. B.Z.)  or have left no instructions at all (Davis v. Davis).  Most courts have refused to enforce prior agreements for use, despite the analytic weakness of the claim that doing so would force the other party, who has willingly provided gametes to create embryos, to procreate against his or her will.
Without a contesting party who provided gametes, the main question under Texas law is whether the embryos were “property” that would pass under the intestacy statute. Noting that no Texas court had held them to be “property,” the Master also found that no Texas court had found them to be worthless. Since they can be the subject of an enforcible contract, the Master concluded that they have an implicit value under Texas law. She recommended that if the probate court does not affirmatively rule that the embryos are property, it should follow the Davis v Davis decision that they have a quasi-property status “in the nature of an ownership interest” that is subject to probate orders for settlement or distribution of an estate.
It is refreshing to see a direct grappling with the charged term “property” for embryos. The widespread reluctance to describe dispositional control of embryos as “property” arises from the fear that if so designated they would have no special status and could be treated like any object or thing. But “property interest” also connotes dispositional control—who decides what is done with embryos within legal limits of what can be done with them. The Master is correct that if not designated as “property” under Texas law, there can still be an ownership or dispositional interest in them. Indeed, they can be valued in terms of the cost of their production, a more accurate assessment than the cost of storing them which the Temporary Administrator of the estate had listed on an inventory of estate assets. Recognizing dispositional control of embryos in no way negates the “special respect” that the Davis court, drawing on American Fertility Society recommendations, had assigned them.
What about the oddity of a two year old orphan having dispositional control over eleven frozen embryos that could become his younger siblings? Of course, he can make no decisions about them until he is 18 nor can a conservator make those decisions for him. The strangeness of the situation might accrue from the long wait until a decision about them is made, based on the Master’s reliance on the vitrification method of freezing as keeping frozen embryos viable for 40 years or longer. It also is strange that at 18 he may then be asked to decide whether to continue paying storage fees, discard them, or donate to others or to research. In past cases no one so young has been asked to make such decisions, though the case is not that dissimilar to adolescents storing sperm or eggs prior to cancer treatment giving directions for disposition of stored gametes if they do not survive.
With further reflection the strangeness of the idea that a two year old boy will inherit 11 frozen embryos begins to fade. Yes, it is a bit novel, but as the Master persuasively shows, the embryos are part of his deceased parents’ estate and as heir he is entitled to have them maintained for his dispositional control until he is 18. The same outcome should occur whatever the age of the heir. Making sure that persons creating embryos give directions for what should be done with embryos if they both die will avoid such situations in the future.