The law and ethics of a property rights approach to frozen embryo disputes

Cornell, Mollie; Baron, Teresa

Abstract

Disputes over frozen embryos represent a particularly problematic case, legally and ethically, due to the ambiguity of their moral and legal status and the potential rights-claims which can be made with regard to them. Recent work has contextualised frozen embryos as liminal and suggested a contextual approach to their legal classification. By appeal to personal property law, with a lens provided by Roman law doctrines, and reproductive bioethics, we argue that frozen embryos may be subjects of property rights, providing a more stable framework for dispute resolution. To illustrate how a property approach would work, we reconsider the facts of the influential Evans case and argue that if a proprietary rather than promissory estoppel claim had been pursued, the reverse outcome may have been reached, to the benefit of women who are disproportionately harmed in these scenarios.

Citation

Cornell, M., & Baron, T. (2024). The law and ethics of a property rights approach to frozen embryo disputes. Legal Studies, 44(2), 332-351. https://doi.org/10.1017/lst.2023.33

• Journal Article Type: Article
• Acceptance Date: Jul 24, 2023
• Online Publication Date: Oct 18, 2023
• Publication Date: 2024-06
• Deposit Date: Feb 26, 2024
• Publicly Available Date: Feb 26, 2024
• Journal: Legal Studies
• Print ISSN: 0261-3875
• Electronic ISSN: 1748-121X
• Publisher: Cambridge University Press
• Peer Reviewed: Peer Reviewed
• Volume: 44
• Issue: 2
• Pages: 332-351
• DOI: https://doi.org/10.1017/lst.2023.33
• Keywords: health law; personal property; frozen embryos; estoppel
• Public URL: https://nottingham-repository.worktribe.com/output/31883974
• Publisher URL: https://www.cambridge.org/core/journals/legal-studies/article/law-and-ethics-of-a-property-rights-approach-to-frozen-embryo-disputes/F22AB5607E77E87FE069CC211AD0629A