In re Marriage of Witten, decided by the Iowa Supreme Court in 2003, held that neither Tamera nor Arthur (Trip) Witten could use or destroy several cryopreserved preembryos created during their marriage using in vitro fertilization (IVF), unless the former couple could reach a mutual agreement. Tamera and Trip Witten, unable to conceive conventionally during their marriage, had attempted to start a family together using IVF at the University of Nebraska Medical Center (UNMC) in Omaha, Nebraska. When Trip sought to dissolve the marriage in April 2002, following several unsuccessful IVF attempts, seventeen of their preembryos were in storage at UNMC. The former couple disagreed about what should happen to the preembryos and asked the court for a resolution as part of the marital dissolution action. The high court of Iowa’s decision to restrict both individuals from using the cryopreserved preembryos without the other person’s consent reflected a belief that Tamera and Trip shared equal decision-making authority over the preembryos.

In A.Z. v. B.Z. (2000), the Supreme Judicial Court of Massachusetts in Boston, Massachusetts, affirmed a lower courtÕs decision, ruling that contracts that require a party to become a parent against his or her will are unenforceable and contrary to public policy. The case centered around A.Z. and B.Z., a divorced couple who had previously used in vitro fertilization (IVF) to start a family together during their marriage and had several preembryos cryopreserved as part of the process. While undertaking IVF, the couple signed multiple consent forms requiring them to decide what should happen to the cryopreserved preembryos in the event of certain listed contingencies, such as death or separation of the couple. The couple indicated their preference that B.Z., A.Z.Õs now former wife, could use the cryopreserved preembryos if the couple later separated. When their relationship deteriorated, however, A.Z. objected to B.Z.Õs attempt to have additional children using the preembryos, leading to a lengthy legal battle. The court case A.Z. v. B.Z. established Massachusetts public policy that people should not be forced to become a parent against their will, even if they previously agreed to provide their genetic material for reproduction.

In 1972, David Whittingham, Stanley Leibo, and Peter Mazur published the paper, “Survival of Mouse Embryos Frozen to -196 ° and -269 °C,” hereafter, “Survival of Mouse Embryos,” in the journal Science. The study marked one of the first times that researchers had successfully cryopreserved, or preserved and stored by freezing, a mammalian embryo and later transferred that embryo to a live mouse who gave birth to viable offspring. Previously, scientists had only been successful cryopreserving single cells, like red blood cells. Mammalian embryos, on the other hand, were more difficult to cryopreserve because they are more complex and therefore more easily weakened or destroyed by the formation of ice within its cells. Whittingham, Leibo, and Mazur’s work provided a successful model for mammalian embryo cryopreservation, a technology that later expanded to cryopreserve more complex embryos, such as human embryos.

Stanley Paul Leibo studied the cryopreservation of embryos in the US in the twentieth century. Cryopreservation is a method of preserving biological material through freezing. Early in his career, Leibo collaborated with other scientists to study why cells were oftentimes injured during freezing. Later, Leibo and his team accomplished one of the first successful births using previously-frozen mammalian embryos. Leibo continued evolving simpler and more reliable methods of cryopreservation and embryo transfer for many different species over the course of his career, such as the development of a one-step procedure of transferring fertilized embryos between cattle. Leibo’s work to develop simple and reliable ways to cryopreserve cells and embryos enabled its use in a wider scope of research, including agriculture, reproductive medicine, and conservation.

In 1972, Peter Mazur, Stanley Leibo, and Ernest Chu published, “A Two-Factor Hypothesis of Freezing Injury: Evidence from Chinese Hamster Tissue-culture Cells,” hereafter, “A Two-Factor Hypothesis of Freezing Injury,” in the journal, Experimental Cell Research. In the article, the authors uncover that exposure to high salt concentrations and the formation of ice crystals within cells are two factors that can harm cells during cryopreservation. Cryopreservation is the freezing of cells to preserve them for storage, study, or later use. Mazur originally suggested the two factors in a 1970 paper, but that article was based on evidence from simple yeast cells. By using hamster cells in 1972, Mazur, Leibo, and Chu confirmed that Mazur’s two-factor hypothesis applied to more complex mammalian cells. The article dispelled the widely accepted notion that rapid cooling rates were safest for all cells, and instead showed that each kind of cell had a different optimal cooling rate depending on the solution in which it froze.

In Maureen Kass v. Steven Kass (1998), the Court of Appeals of New York in Albany, New York, ruled that the state should generally consider IVF consent forms signed by participants in an in vitro fertilization (IVF) program valid, binding, and enforceable in the event of a dispute. The court indicated that decisions regarding the handling of cryopreserved pre-zygotes, often called preembryos, contained within these consent forms should be upheld. Although Steven and Maureen Kass had signed IVF consent forms agreeing to donate unused preembryos to research, during their divorce Maureen argued for custody of the preembryos. The New York Court of Appeals ruled in favor of Steven Kass and concluded that the informed consent forms signed by the former couple had clearly manifested the coupleÕs mutual intent to donate any preembryos to research in the event of a dispute.

In the case York v. Jones (1989), the United States District Court for the Eastern District of Virginia was one of the first US courts to address a dispute over a cryopreserved preembryo. Steven York and Risa Adler-York (the Yorks), a married couple, provided their gametes to doctors who created the preembryo, which the court referred to as a pre-zygote, as part of an in vitro fertilization (IVF) program at the Howard and Georgeanna Jones Institute for Reproductive Medicine (Jones Institute) in Norfolk, Virginia. The couple sued when the doctors at the Jones Institute refused to release the preembryo to the Yorks for use at a different IVF clinic. The Virginia district court denied the Jones Institute's attempt to have the York v. Jones case dismissed, and instead upheld the Yorks' right to move forward with their lawsuit. The York v. Jones decision had important implications for future disputes over cryopreserved preembryos because it treated the Yorks' cryopreserved preembryo as legal property over which the Yorks retained decision-making authority.

In Davis v. Davis (1992), the Supreme Court of Tennessee decided a dispute over cryopreserved preembryos in favor of Junior Lewis Davis, who sought to have the preembryos destroyed over the objections of his former wife, Mary Sue Davis. The decision in Davis, although not binding in other states, suggested a framework for resolving similar disputes in the US. That framework established that courts should follow the wishes of those who contribute their sperm and egg cells, or gamete providers, to create preembryos. In the event of a dispute, courts should enforce any prior agreement between the gamete providers and in the absence of such an agreement, the court should weigh the interests of the parties, ordinarily ruling in favor of the party who wishes to avoid procreation.

In 2001, the Supreme Court of New Jersey decided a dispute between a divorced couple over cryopreserved preembryos created through in vitro fertilization (IVF) during the coupleÕs marriage. The former wife (J.B.) wanted the preembryos destroyed, while her former husband (M.B.) wanted them to be used for future implantation attempts, such as by an infertile couple. In J.B. v. M.B. (2001), the court declined to force J.B. to become a parent against her will, concluding that doing so would violate state public policy. Instead, the Supreme Court of New Jersey decided that agreements directing the allocation of cryopreserved preembryos will be enforced, unless one party changes his or her mind prior to the preembryosÕ use or destruction. Should a party revoke an earlier decision about the preembryos, New Jersey courts should weigh the partiesÕ interests with special weight given to an individualÕs right to not procreate.

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