The first live birth of a child conceived from in vitro fertilization (“IVF”) happened in 1978. Today, over eight million children have been born through IVF procedures. The first dispute over the resulting pre-embryos was in 1990 when the Tennessee Supreme Court outlined a balancing approach with a presumption favoring non-use of the pre-embryos for courts to follow when resolving these matters. Numerous states have taken differing approaches—some have taken a contractual approach, others an approach requiring contemporaneous mutual consent before there can be a departure from the status quo, and very few state legislatures have directly addressed how to resolve disputes over pre-embryos. The balancing approach is the sole approach that addresses the issues of infertility among parties or when a party subsequently becomes infertile after creation of pre-embryos. However facially neutral the balancing approach may seem, there are inherent gender biases in its application. This Note advocates for ensuring that both parties are entitled to the same analytical starting point when the balancing approach is used in spite of a presumption for nonuse and for making the infertility exception into a working standard that courts would be more apt to apply by mitigating the damages suffered by the objecting party.
