Intended Parents

Frozen Embryo Laws


In February 2024, Alabama’s Supreme Court ruled in a wrongful death lawsuit that embryos created through in-vitro fertilization (IVF) should be considered children. It’s the most recent example of how frozen embryo laws could impact your journey to becoming parent. 

Knowing the frozen embryo laws in the United States can help you stay on the right side of the law if using frozen embryos is right for your circumstances.

Fill out our online contact form to get the support you deserve in growing your family. We can connect you to reputable fertility specialists who can walk you through the specific medical steps and laws in their state. 

This article will look at what laws for frozen embryos govern and the evolution of those laws with assisted reproductive technology (ART).

What Do Frozen Embryo Laws Cover?

The laws for frozen embryos in the U.S. cover a wide range of topics. It governs aspects such as:

Different states may have different regulations when it comes to how they are stored, from the safe storage practices themselves or time limits on how long frozen embryos can be stored. 

Dependent on the state, embryos ownership can be impacted by how they are viewed legally. Frozen embryos could be classified as property, potential life or something else..

Depending on how the frozen embryos are used, consent for usage comes from different sources. With a frozen embryo transfer, for example, clinics will usually need written consent from whoever owns the embryos. With embryo donation or surrogacy, written consent and agreements have to be in place first.

Courts will decide cases on whether embryos can be implanted, discarded, or donated.

Your state’s frozen embryo laws may look at embryos different than another which is important to be aware of if using frozen embryos to grow your family.

Two examples are California and Florida.

  • California views frozen embryos are property. They follow contract law, meaning agreements signed before IVF outline the ins and outs of what’s to come and what happens in certain situations.
  • In Florida, frozen embryos live in a “gray area” where they aren’t considered property, but they aren’t considered people either. They have laws addressing the disposal of embryos, requiring consent from both parties.

That’s why having legal contracts in states where frozen embryo laws are enforceable are important.

Legal representation will ensure your rights are protected whether it’s a contract with someone you are securing embryos from or a cryopreservation facility where you will store your embryos for future use.

What Kind of Frozen Embryo Laws are There in the United States?

As of early 2024, this Politico article cited 19 states which have laws about frozen embryos:

  • Broad personhood provisions in their law

  • Language on personhood or defining “unborn children” in their criminal code

  • Case law expanding the definition of child under state law to include fetuses

    Arizona

    Arizona passed a frozen embryo law in 2019 that gave custody of frozen embryos to the individual who intended to develop them to birth in the event of a divorce.

    However, if both want to develop the frozen embryos, they are awarded in a manner that provides them the best chance to develop to birth. If only one spouse provided sperm or eggs that led to the creation of those embryos through in-vitro fertilization (IVF) then that individual would be awarded custody of the frozen embryos.

    Louisiana

    Louisiana decided in 1986 that a human embryo or embryo from in-vitro fertilization counts as juridical person, giving them limited rights, under their civil code.

    As a juridical person, those embryos can’t be intentionally destroyed. It is illegal for doctors to dispose of any viable embryos that are still developing.

    Florida has a statue that specifically addresses frozen embryos. The couple looking into IVF and their physician must sign a written contract together.

    The agreement lays out stipulations for disposal “in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.”

    Alabama

    Alabama’s ruling mentioned in the introduction could have a wide-reaching ripple effect. RESOLVE, the National Infertility Association, spoke to the Associated Press in February about its potential impacts.

    “This ruling is stating that a fertilized egg, which is a clump of cells, is now a person. It really puts into question, the practice of IVF,” CEO of RESOLVE Barbara Collura told The Associated Press for their article.

    RESOLVE also said that it was a “terrifying development for the 1-in-6 people impacted by infertility.”

    Contact us online to be connected with fertility clinics near you if you are concerned about frozen embryo laws in your state. They can offer guidance for what comes next.

    How Have Frozen Embryos Laws Evolved?

    Frozen embryo laws change with the times.

    And because of the 2022 Dobbs v. Jackson Women’s Health Organization ruling, the American Society for Reproductive Medicine (ASRM) wrote that that decision shows the legal landscape is changing to include direct attacks on ART.

    Frozen embryo laws in the U.S. have traditionally classified embryos as property or in the gray area. The more personhood bills that come online, the more legislation that could be passed that changes the legal status of embryos.

    With courts being more willing to take positons to limit access to reproductive healthcare, frozen embryo laws may become more prevalent that define life beginning at fertilization.

    That case alone could set precedence for arguments against if embryos are accidentally or intentionally disposed of in a lab, and it being looked at as an accidental death or homicide.

    Frozen Embryos and Abortion Laws

    With national abortion rights overturned after the 2022 Dobbs v. Jackson Women’s Health Organization more states have been introducing personhood bills.

    The Center for Reproductive Rights, which found that 14 states had introduced legislature regarding fetal personhood bills in their 2024 sessions, said it was fallout from that 2022 Dobbs decision.

    Personhood laws would establish an embryo or fetus having the full rights of a person based on the idea that life begins at conception. This marries abortion laws and frozen embryos because you’ll now need to check with your fertility clinic about it views that ruling based on where they are located.

    Following the ruling in Alabama, states like Florida, Iowa and Oklahoma, have discussed wrongful death statutes that treat embryos as legal persons.

    Other states like Indiana, Kansas and Mississippi have introduced personhood-related bills that also include provisions impacting child support, tax credits and fetal homicide laws

    Right now, lawmakers in more than 12 states are actively considering personhood-related bills.  

    To find out more about frozen embryo laws in your state, get in touch with us online.  We can recommend reputable assisted reproductive technology (ART) lawyers close to you.

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