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.

Two year Old Boy to Inherit 11 Frozen Embryos

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2022-06-21 14:00:09

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.[1]

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.) [2] or have left no instructions at all (Davis v. Davis). [3]  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.[4]  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.[5]

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