Note: A Chilling Experience: An Analysis of the Legal and Ethical Issues Surrounding Egg Freezing, and a Contractual Solution

By Alicia J. Paller. Full text here.

If you Google “egg freezing,” you will find numerous newspaper and magazine articles discussing this new reproductive technology. You will also encounter countless clinics currently helping women extract and freeze their eggs. You might find an occasional warning about the potential risks associated with egg freezing, as the media is buzzing with questions about this new, ethically uncertain technology. If you conduct a legal search, however, you will not find answers to these questions.

In October 2012, the American Society for Reproductive Medicine lifted the “experimental” designation from egg freezing procedures. Women can now freeze their eggs in their twenties, thirties, or forties, and conceive children with those eggs in their forties, fifties, or sixties. While the potential benefits of “freezing one’s fertility” have been widely discussed, the physical, psychological, and financial risks associated with egg freezing have not been appropriately explored. Clinics and patients remain vulnerable as women freeze their eggs within a medical regime that has far outpaced legal guidelines. Few regulations relate to assisted reproductive technology, and none pertain specifically to egg freezing. As egg freezing becomes more popular, or even routine, it is important that issues including informed consent, what happens to abandoned or pre-deceased eggs, and what constitutes appropriate damages for breaching an egg freezing contract are fully analyzed and discussed.

This article jump-starts that discussion, suggesting that while egg freezing should remain an option, it raises complex issues about reproductive rights that are unlikely to be resolved without legislative action. Consequently, this Note recommends a concrete, balanced solution—legislatively mandated standard form contracts—which will provide both patients and fertility clinics with uniformity, predictability, and security. This new structure will help prevent legal and ethical controversies from arising, while preserving reproductive freedom as egg freezing continues to grow in demand.