Abortion became a constitutional right in 1973 with the U.S. Supreme Court's landmark decision in Roe v. Wade, but the Justices who ruled on that case could hardly have envisioned procedures such as In Vitro Fertilization. It's been estimated that there are approximately 5 million babies that had been born as a result of IVF, including a procedure known as frozen embryo transfer (FET). This procedure involves subjecting the prospective mother or donor to a series hormonal injections to stimulate egg production. If the eggs are viable, they are inseminated with the sperm of the prospective father or donor, then implanted back into the woman or cryogenically frozen for future use. Frozen embryos have become rather controversial over the years, with pro-life proponents arguing for the right of parents who seek implantation against the wishes of their partners. Their argument is largely based on the idea that life begins at conception, and the process of inseminating a viable egg with sperm is a form of conception in their eyes.
Of course, what's really important is how the courts view this issue, since that's the only recourse when couples cannot agree on the fate of their frozen embryos. As a general rule, the New Jersey courts tend to favor the party who does not wish to become a parent. In addition, they are more likely to favor the party who does not wish to relinquish the embryos for implantation in other women. It's important to note that the courts typically defer to the right to not procreate even when there is a written agreement. Take, for example, the 2001 case of J.B. v. M.B., in which a couple agreed in writing to donate their frozen embryos to the IVF program upon the dissolution of their marriage. During their divorce proceedings, the wife stated that she wanted the embryos destroyed rather than donated for future use by the IVF program. The husband objected, stating that he wanted the embryos to be donated to other couples, which was the whole point of their written agreement.
The trial court ruled in favor of the wife, as did the Appellate Division, who disagreed that the destruction of the embryos violated his constitutional right to procreate. The husband, after all, was still fertile and could produce more children with a future partner. Allowing the embryos to be used, however, would violate the wife's right to not procreate, which the courts were not willing to do. The court's final decision, however, came down to the fact that “a contract to procreate is contrary to New Jersey policy and is unenforceable.” The NJ Supreme Court agreed on deferring to the wife's right to not procreate, but also pointed out that the contract stated that the parties would either donate the embryos or default to the ruling of the courts. That stipulation further supported their deference to the right to not procreate -- a critical legal consideration for couples who are considering assisted reproductive procedures.