The role of reproductive effort in the resolution of frozen embryo disputes: an analysis of equity, property and rights in this context

Abstract

Frozen embryo disputes have been described as cases requiring the ‘wisdom of Solomon’ due to the difficulty in assessing the potentially competing interests of gamete providers following IVF treatment and the breakdown of their relationship. A legal framework modelled on ‘reproductive effort’ could inform how authority over the disposition decisions of frozen embryo(s) should be allocated in such disputes. This thesis considers how ‘reproductive effort’ could be applied under three different areas of law by which frozen embryo disputes have previously been settled, namely: estoppel, property law and a rights-based regime. A specific application of ‘reproductive effort’ in all three of these areas of law highlights the importance of the investment made by the female partner which, it is argued, in most circumstances, should grant her decisional authority over the disposition of any existing embryo(s). Whichever legal model is employed, it can be tailored (by regulation, statute or by application in case law) to more adequately recognise the gendered role ‘reproductive effort’ plays in IVF.

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ORCID for Hazel Biggs: orcid.org/0000-0002-4434-6543

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