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Ms. Anne Swanda
University of Nebraska College of Law
Ms. Carissa Giebel
Regent University School of Law
Mr. Francis Jamison
Rutgers School of Law—Camden
2009 Problem Presented for Essay Response
You have been consulted by Dr. Margo Rhinehart, the embryologist at the local fertility clinic. She informs you that her clinic needs advice in understanding what the law requires of them when transferring abandoned embryos at their clinic to other patients. The embryos in question belonged to six different patients, none of whom have paid the clinic’s embryo storage fee nor had any other contact with the clinic for more than seven years.
Four of the patients involved signed a document prior to creating the embryos, whereby they indicated that they planned to retain the embryos for future family building efforts. They further agreed that all of their rights to the embryos would cease if they did not give the clinic further instructions within five years of the date the embryos were created. All of these patients used their own gametes for creation of the embryos.
One of the patients, a single woman, used donated sperm and her own eggs to create her embryos. She did not sign any documents indicating her preference for disposition of unused embryos and promised the clinic that she would contact them later with her decision.
In searching for the patients, it was discovered that the remaining patient, also a single woman, died more than five years ago and the right to decide on the disposition of her unused embryos was given to her executor in her will. The executor has refused to pay the storage bills and refuses to make any decision on the disposition of the embryos.
The clinic has patients who would accept the donation of any of the “abandoned” embryos and the clinic would like to proceed with transferring them to these potential recipients.
Advise the clinic as to the following:
- What legal risks, if any, would the clinic be subject to if the original patients, or their heirs or assigns, would request possession of the embryos after a transfer of the embryos had been made to another patient?
- What potential actions, if any, should be filed in court to assist the clinic in fulfilling its goal of transferring the embryos to other patients? Distinguish whether different actions would be recommended based on the distinctions among missing patients.
- Assuming legal action was appropriate:
- Discuss the strengths and weaknesses of the Clinic’s position using the following legal principles, as applicable, for analysis: Contract, Property, Probate and Parentage.
- What authority should be cited in support of the clinic’s request and what authority should be given to the court that would represent opposition to the clinic’s request?
Assume that all of the missing patients had at least one live birth from the original embryos they created.