by Browne Lewis

Dana was two months behind on her storage locker payments. Thanks to caller ID, Dana was able to avoid the collection calls. Eventually, the owner of the storage facility sued to get the right to sell the contents of Dana’s storage locker. This type of activity is shown on the popular television show Storage Wars.

Dana was also two months behind on her rent. Her landlord obtained a writ of eviction to have Dana removed from the premises. Dana left the apartment, but she did not take her belongings with her. In accordance with the landlord-tenant statute, the landlord placed Dana’s belonging in a storage facility for the required amount of time. When Dana did not retrieve her property, the landlord sold her belongings.

Dana paid two hundred dollars per month to store her frozen oocytes at a fertility clinic. Dana was two months behind on payments. Should the fertility clinic—like the landlord or the storage facility owner—be able to sell Dana’s oocytes to recoup the past due payments? Should the law treat Dana’s frozen oocytes like any other piece of personal property? This article explores the possible answers to those questions and attempts to unscramble the complicated issues that may arise because of the growing use of human oocytes cryopreservation.

Property law governs the relationship between people and the objects they own or seek to own. The United States Supreme Court has declared that almost anything can be considered property. Once an object is legally classified as property, legal recognition of ownership is possible. Ownership gives a person certain legal rights towards his or her property; these rights are included in the “bundle-of-sticks”—a metaphor that is often used to illustrate the nature of property rights. The owner of the bundle of sticks has several rights (represented metaphorically by the sticks) in relation to the object, such as the right to include, the right to exclude, the right to destroy the object, and the right to dispose of the object. The right to include and the right to exclude refer to the ability to decide who can and cannot use the object. The latter two rights mentioned indicate that the person is entitled to control the disposition of the object.

Every time assisted reproductive technology (ART) permits life to be created without sexual intercourse, there is the possibility that questions of ownership as well as the rights flowing from ownership will arise. Courts may be reluctant to classify anything that is remotely biologically related to humans as property. The most courts have been willing to hold is that a person has decision-making authority over sperm that has been extracted from a man’s body. One reason why courts may be hesitant to explicitly recognize sperm as property is America’s legacy of slavery. From a legal perspective, slavery was one person’s ownership of another person being legally recognized. Now, the law and public policy both discourage any attempt to treat people as commodities. Nevertheless, because of ART it is possible to create a “baby market” in the United States. This technology allows persons to conceive without sexual intercourse. Therefore, the intimate human part of the procreative process may be removed. This may lead to babies being treated like commodities in the market place.

The ownership of children is not a new concept. Under the Supreme Court’s parental rights doctrine, parents traditionally had such absolute control over their children that, legally, parenthood resembled ownership. The parental rights doctrine refers to the superior right that is given to parents with regards to making decisions that impact the lives of their children. Historically, the law appears to have supported the idea that children were the property of their parents. A man owned his children just like he owned his cattle. Even though women did not have the legal right to own property, the law recognized their right to raise their children as they saw fit. The Supreme Court has consistently recognized the fact that parents have a fundamental right to make decisions concerning the care, custody, and control of their children. The Court first acknowledged this right in 1923 and reaffirmed it in 2000 with its decision in Troxel v. Granville. Some politicians act as if a parent’s right to make medical decisions for his or her children stems from some type of property interest. For example, when defending his belief that a vaccination program should remain voluntary rather than mandating immunization, Rand Paul, a Republican senator from Kentucky, stated that “[p]arents own the children, and it is an issue of freedom . . . .” It was clear that Senator Paul was referring to the freedom of the parents and not the children.

Traditionally, the government was hesitant to interfere with parents’ rights to control their children. As a result, parents frequently avoided punishment for abusing their children. For example, the first well-documented child abuse case in the United States happened in 1874. The victim of that case, ten-year-old orphan Mary Ellen Wilson, was severely abused by her foster mother. Since the child was an orphan, the foster mother was considered to be the child’s legal mother. In spite of numerous reports that the child was being beaten daily, the government was unwilling to remove the child from the home. It took the efforts of a Methodist missionary and the founder of the American Society for the Prevention of Cruelty to Animals (ASPCA) along with pressure from the local media to get the court to issue an order to have Mary removed from the home.

As a result of advances in ART, children are once again being treated like property. Two recent events support this assertion. The first occurrence involved Jennifer Cramblett, a white woman who sued a sperm bank because it sent her the vials of an African-American donor’s sperm instead of those of the white donor that she ordered. One of the claims stated in her complaint was breach of warranty. That cause of action is usually reserved for cases involving the sale of goods under the Uniform Commercial Code. When discussing the case, CBS News legal analyst Rikki Klieman opined: “[B]reach of warranty sounds like a commodity—you bought a car and it was defective.” The second incident involved an Australian couple that allegedly traveled to Thailand to use its in-vitro-fertilization (IVF) services so that a Thai surrogate could carry their child. The surrogate gave birth to twins. According to news reports, the couple left the twin with Down’s syndrome in Thailand with the surrogate and returned to Australia with the healthy twin. If the case involved widgets, the couple would probably have had a strong product liability case.

In both of the above-referenced cases, the child was treated more like a defective product than a person. In the first case, the woman accepted the good and sued for damages because she did not receive a white child, the commodity for which she bargained. That is an example of a classic breach of warranty case. Some of the comments posted on the Internet in reaction to the lawsuit maintained that the clinic should pay damages because the woman ordered white sperm, but she received black sperm. In response to a story about the case posted on Yahoo, an anonymous person posted a comment arguing that the woman’s case is similar to someone who goes to a restaurant and orders a steak, but receives a hamburger. In the second case, the couple refused to accept the disabled twin because it was a substandard product. Both of these cases involved contracts that resulted in the birth of a child, however, the dissatisfied “customers” acted as if they had contracted for goods.

Comments on social media and statements made on television news broadcasts indicated that the public response to both of these cases was mainly negative. The parties were accused of rejecting babies who did not measure up to their standards. Nonetheless, the parties involved in the cases would probably argue that children were not the subjects of the contracts. In the first case, the product the woman contracted with the sperm bank to deliver was the sperm and not the child. Thus, her lawsuit against the sperm bank focused upon a breach of contract caused by the delivery of the wrong sperm. In response to its mistake, the sperm bank treated the sperm like property. The owner of the sperm bank appeared to think that because the woman did not receive the product for which she paid, she was entitled to a refund. Therefore, prior to the lawsuit the sperm bank offered to return the amount that the woman had paid.

In the second case, the couple relied on the fertility clinic to create a viable embryo. Trisomy 21, the most common type of Down’s syndrome, develops when an embryo has three copies of chromosome 21 instead of the usual two. The embryo that the clinic implanted resulted in one of the children being born with Down’s syndrome. Because the clinic did not meet its contractual obligation of implanting a healthy embryo, the couple may have felt justified in not accepting the resulting child. One could argue that if the embryo was the couple’s property, they should have been given the opportunity to have it genetically tested so that they could make an informed decision regarding whether it should be implanted in their surrogate. The idea of returning “defective” or “undesirable” children is not limited to children born from using ART. In the last few years, some parents have attempted to “rehome” their adoptive children by posting advertisements on the Internet seeking new parents for the children. Most of the children “auctioned” on the web have been adopted from countries outside of the United States. The acceptance of this practice may make it easier for persons to justify treating children conceived using ART like products.

In the cases discussed above, the ability of the people to recover damages may be impacted by whether they have any legally recognized property interests in the sperm and embryo involved in the case. The manner in which courts have resolved the property interests in those reproductive components will be discussed later in this article to demonstrate the options available to the courts with regard to the law’s treatment of frozen human eggs.

This article is divided up into four parts. Part I includes a discussion of just a few examples of when babies conceived as a result of surrogacy arrangements have been treated like personal property. Part II explains the process that makes human oocyte cryopreservation a viable option for young women. That section also explores the ways that human eggs may end up in the market place. Part III examines the options open to courts with regard to the extent of a woman’s property interest in her frozen eggs. Part IV contains an analysis of some of the property law causes of action that may be available to women in the event that frozen human eggs are classified as property.


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