Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 1 of 30

ATTORNEY FOR APPELLANT

Alexander N. Moseley

Dixon & Moseley, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Tara K.H. Rabiola

Jaimie L. Cairns

Cairns Rabiola Vance, LLC

Greenwood, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David Freed, 

Appellant-Respondent,

v.

Elizabeth Freed,

Appellee-Petitioner.

January 26, 2024

Court of Appeals Case No.

23A-DC-129

Appeal from the Johnson Circuit 

Court

The Honorable Andrew S. 

Roesener, Judge

Trial Court Cause No.

41C01-2203-DC-188

Opinion by Judge Kenworthy

Judges Foley and Felix concur.

Kenworthy, Judge.

Case Summary

[1] During their marriage, David Freed (“Father”) and Elizabeth Freed (“Mother”) 

underwent in vitro fertilization (“IVF”) to attempt to have children. They 
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created and froze pre-embryos,1 signing an agreement with a cryopreservation 

company. One of those pre-embryos resulted in the birth of a child. 

[2] The couple divorced and resolved all issues except the custody of a single 

remaining frozen pre-embryo. The issue of how to resolve the custody of a 

frozen pre-embryo has never appeared before our appellate courts, and the trial 

court looked to the approaches used by other jurisdictions, balancing the 

parties’ interests and ultimately awarding the pre-embryo to Mother. 

[3] Father appeals, raising the issue of whether the trial court’s award of the preembryo to Mother over Father’s objection violates Father’s fundamental right 

of procreation. Determining the trial court applied the appropriate test, we 

affirm.

Facts and Procedural History2

[4] Mother and Father were married in June 2015. In the early stages of their 

marriage, Mother and Father discussed raising a family together. They hoped 

to have two children. When Mother and Father could not get pregnant, they 

visited a fertility doctor. 

1 A human pre-embryo is a human ovum (egg) that has been fertilized by a human sperm and begun cell 

division. The pre-embryo at issue was frozen at six days old.

2 We held oral argument on October 26, 2023, at Purdue University. We thank counsel and those in 

attendance for their attentiveness and respect for the sensitivity of this issue.
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[5] Father went through testing first, and his results showed he did not have fertility 

issues. Mother was tested, and her results revealed she had low ovarian reserve. 

Her doctor recommended the couple try IVF. Mother took medication to 

stimulate her ovaries so they would release eggs. The eggs were collected and 

fertilized with Father’s sperm. This first cycle of IVF resulted in one preembryo. Mother and Father completed another cycle, which resulted in three 

pre-embryos. 

[6] After completing the IVF cycles, the couple had the first pre-embryo transferred 

to Mother’s uterus in April 2019. The transfer resulted in a pregnancy but 

ended in a miscarriage. Mother and Father transferred two more pre-embryos 

in November 2019. “[O]ne of the embryos took and the other did not.” Tr. 

Vol. 2 at 11. The successful pre-embryo resulted in the birth of a child, G. 

[7] The state of Mother and Father’s marriage when they conducted the second 

transfer “was definitely not good.” Id. “2019 had been a difficult year for 

[them] with . . . the miscarriage and then other . . . family loss and . . . the 

discussion of divorce had come up a few months prior to the transfer.” Id.

[8] Mother filed for dissolution of marriage in March 2022. Mother and Father 

submitted a partial settlement agreement resolving all issues except disposition 

of the sole remaining pre-embryo. The trial court accepted the partial 

settlement agreement and dissolved the parties’ marriage. 

[9] Mother requested the trial court award her the pre-embryo. She said that if 

awarded the pre-embryo, she would transfer it to her uterus in hopes it would 
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result in the birth of a second child. Mother said Father “could either be . . . 

not involved at all or he could . . . be in a co-parenting relationship like he is 

with our son, [G.]” if she were to have another child using the pre-embryo. Id. 

Mother earns a salary of $83,000 as a lab supervisor at Roche Diabetes Care, 

and stated she would be able to financially support herself, G., and another 

child. 

[10] Mother said, “[T]here’s very little chance that I could give [G.] a biological . . . 

sibling ever . . . just based on my previous infertility.” Id. at 12. She also 

acknowledged she was four years older than when she underwent her first 

round of IVF, and—because Mother was forty years old—a future pregnancy 

“may not even be . . . advised by a doctor.” Id. Completing another round of 

IVF would not be a “viable option for [her] to pursue” because she did not have 

enough coverage left on her insurance. Id. Mother acknowledged the chances 

of success with the pre-embryo transfer: “[A]s I get closer to menopause . . . my 

cycle could be off and then the [pre-embryo] doesn’t necessarily take if the 

timing is off when they do the implantation.” Id. at 17. When asked if she 

believed it was fair “at this point in time to make Mr. Freed a father of a second 

child if he . . . doesn’t want to be,” Mother responded “I don’t know.” Id. at 

19–20.

[11] Mother concluded by saying:

These embryos—I already feel like they’re my children. At this 

point, you can already identify whether they’re a boy or a girl. 

We didn’t get them tested, so I don’t know what the last one is. 
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Our first miscarriage was a little girl. And I just think of this 

embryo already as my child. And I can’t fathom, um, destroying 

it or donating it to science. (Crying). I just want the chance to 

see if it would result in a . . . child. 

Id. at 22.

[12] Father requested the trial court award him the pre-embryo so he could ask the 

storage facility to dispose of it. He did not want to give the pre-embryo to a 

research facility because he did not “know enough of what would be . . . gained 

by any study or otherwise, so [he’s] not comfortable with that.” Id. at 27. He 

did not want to donate the pre-embryo to another couple because he “think[s] 

mentally [he] would struggle knowing that someone else is raising . . . what is 

essentially [his and Mother’s] child.” Id. He testified as follows:

[I]t was hard enough to decide to leave the marriage and 

separate, um, knowing that I already had a child. . . . [B]ut then 

the thought of bringing another one in post divorce is not 

something I think would be a wise decision on either part. . . . 

[B]ut ultimately, my choice comes down to the fact that I would 

not be present . . . in that child’s life and while there would be 

some co-parenting, I wouldn’t be present overnights or early 

mornings[;] . . . just at the times where I was able to visit or then 

have custody on weekends and such . . . with the current 

situation with [G.], our son, . . . it’s hard on a regular basis—a 

daily basis (crying) to know that I don’t get to see him. 

Id. at 24. 

[13] When they began IVF, Mother and Father signed an agreement with the

cryopreservation clinic—the facility storing the pre-embryos. In the Advanced 
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Directives portion of the agreement, Mother and Father indicated that if either 

of them dies, sole ownership of the pre-embryos would be given to the surviving 

party. They indicated if they both die, the facility would discard the preembryos. The Advanced Directives also provides:

If the Client Depositors’ relationship terminates and the 

disposition of the embryos is provided for by a divorce decree or 

other legally-binding document, the Company will comply with 

that document, upon receipt of a copy. Otherwise, the Company 

shall dispose of all embryos only as provided herein or in 

accordance with the Company’s Disposition Directive document.

Ex. Vol. 3 at 7. 

[14] The agreement also contains the Conditions of Release of the pre-embryos, 

which states:

A. If the recipient of the embryos is the Client Depositor, the 

embryos will be released: 

i. only to a licensed physician (who must execute a 

consent form provided by the Company), and 

ii. upon the express notarized authorization of both 

Client Depositors, and

iii. upon the authorization of the Recipient’s Clinic, 

and

iv. upon completion of serology/virology tests required 

by the Company.
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 7 of 30

Id. at 5.

[15] The trial court found the contract offered no directive for the disposition of the 

pre-embryo if Mother and Father’s marriage was dissolved. Because Indiana 

lacks a statutory scheme or case law on this issue, the trial court looked to other 

jurisdictions for guidance. In its thorough and well-articulated order, the court 

found Mother’s interest in using the pre-embryo by attempting to implant it and 

bring a child to term outweighed Father’s interest in avoiding parenthood. 

Father now appeals.

1. Assisted Reproductive Technology

[16] Although pre-embryo disposition after the dissolution of a marriage is an issue 

of first impression in Indiana, we anticipate courts will encounter this issue 

again. There are eight IVF clinics in Indiana, and seven of those clinics 

cumulatively reported the births of over 1,000 infants in the year 2021 alone. 

Assisted Reproductive Technology (ART) Data, Centers for Disease Control and 

Prevention,

https://nccd.cdc.gov/drh_art/rdPage.aspx?rdReport=DRH_ART.ClinicsList&

SubTopic=&State=IN&Zip=&Distance=50 (last visited January 19, 2024) 

[https://perma.cc/52S2-WHSY]. And the issue of pre-embryo disposition is 

not limited to the desires of the genetic contributors—third parties can become 

involved and complicate the issue. See Marla Clark, Potential Parenthood: The 

Ownership of Frozen Embryos, 43 Res Gestae 24, 27 (Nov. 1999) (noting issues of 

inheritance when genetic contributors die). Establishment of public policy on 
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this delicate issue would be better left to our General Assembly, but there is 

currently no legislative guidance.

3

2. Standard of Review

[17] Where—as here—the trial court makes special findings of fact and conclusions 

of law, we do not set aside the findings or judgment “unless clearly erroneous, 

and due regard shall be given to the opportunity of the trial court to judge the 

credibility of the witnesses.” Ind. Trial Rule 52(A). “Findings of fact are 

clearly erroneous only when they have no factual support in the record[.]” 

3 On January 11, 2023, House Bill 1267 was given its first reading and referred to the Committee on 

Judiciary. No further action has been taken regarding the bill. In relevant part, House Bill 1267 states: 

(a) In the event that two (2) legal owners of cryopreserved embryos are separating or divorcing 

and do not agree upon the disposition of any cryopreserved embryos, a court of competent 

jurisdiction shall first look to any existing agreement expressing the couple’s intent regarding the 

disposition of the couple’s remaining embryos in the event of divorce or separation. In the 

absence of an agreement or a dispute concerning the validity of an agreement, the court shall 

attempt to balance the parties’ interests when awarding the embryos.

(b) A court shall consider the following factors when balancing the parties’ interests:

(1) The intended use of the embryos by any party wishing to preserve them.

(2) A party’s reason for wanting to procreate with the cryopreserved embryos.

(3) The reason for the cryopreservation of the embryos.

(4) Each party’s ability to have genetic children through other means. 

(5) The existence of a party’s need to preserve fertility.

(6) Any burden or hardship that may be placed on a party wishing to avoid procreation.

(7) Any prior verbal discussions that the party wishing to procreate may have relied upon.

(8) Any bad faith attempt, by either party, to use the cryopreserved embryos as leverage 

during a divorce proceeding.

(9) Any other consideration or occurrence deemed relevant by the court.

(c) A party opposed to the use of a cryopreserved embryo for the purpose of procreation is not 

considered a legal parent to any child created from the use of a cryopreserved embryo unless the 

party agrees, in writing, to be a legal parent to the child.

H. 1267, 2023 Reg. Sess. (Ind. 2023), https://billtexts.s3.amazonaws.com/_data/in/httpsd37sr56shkhro8-cloudfront-net-pdf-documents-123-2023-house-bills-HB1267-HB1267-01-INTRpdf.pdf (last visited January 16, 2024) [https://perma.cc/VS7W-49SY].
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 9 of 30

Wysocki v. Johnson, 18 N.E.3d 600, 603 (Ind. 2014). “But the trial court’s 

conclusions of law and any constitutional challenges are reviewed de novo.” In 

re Adoption I.B., 32 N.E.3d 1164, 1169 (Ind. 2015) (internal citations omitted).

3. Rights to Procreation and Parenthood

[18] The United States Supreme Court has addressed the right to procreate in several 

instances. The Court upheld the sterilization of a woman in Buck v. Bell, 274 

U.S. 200, 207 (1927), but later struck down a statute authorizing the 

sterilization of certain classes of criminals, Skinner v. Oklahoma, 316 U.S. 535, 

541 (1942). In Skinner, the Supreme Court called procreation “one of the basic 

civil rights of man” and “fundamental to the very existence and survival of the 

[human] race.” 316 U.S. at 541. In Griswold v. Connecticut, the United States 

Supreme Court struck down a statute forbidding married couples’ use of 

contraceptives, describing the marital relationship as “lying within the zone of 

privacy created by several fundamental constitutional guarantees.” 381 U.S. 

479, 485 (1965). And in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), the 

Supreme Court said, “If the right of privacy means anything, it is the right of 

the individual, married or single, to be free from unwarranted governmental 

intrusion into matters so fundamentally affecting a person as the decision 

whether to bear or beget a child.” The Indiana Supreme Court has explicitly 

recognized a fundamental right to procreation. See Members of Med. Licensing Bd. 

of Ind. v. Planned Parenthood Great Nw., Haw., Ala., Ind., Ky., Inc., 211 N.E.3d 

957, 969 (Ind. 2023); State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994); State ex 

rel. Pollard v. Crim. Ct. of Marion Cnty., 329 N.E.2d 573, 585 (Ind. 1975).
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[19] Under federal substantive due process analysis, the State may not “directly and 

substantially” interfere with fundamental rights. Zablocki v. Redhail, 434 U.S. 

374, 387 (1978). If the State’s action directly and substantially interferes with a 

fundamental right, the action is subject to strict scrutiny, meaning the action 

“must be a necessary means to a compelling governmental purpose and be 

narrowly tailored to that purpose.” Boultinghouse v. State, 120 N.E.3d 586, 590 

(Ind. Ct. App. 2019) (quoting Ind. Dep’t of Env’t. Mgmt. v. Chem. Waste Mgmt., 

Inc., 643 N.E.2d 331, 337 (Ind. 1994)), trans. denied. “Our Court has held that 

the ‘state and federal substantive due process analys[e]s [are] identical.’” Id.

(quoting N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans. 

denied). 

[20] Pre-embryo disposition cases also implicate parenting rights, which spur 

additional considerations. Mother argues Father has already consented to 

procreation by contributing to the creation of the pre-embryos, which reframes

Father’s procreation rights as parenting rights. See Tracey S. Pachman, Disputes 

over Frozen Preembryos & the “Right Not to Be a Parent,” 12 Colum. J. Gender & L. 

128 (2003). Parents have a constitutional right to raise their children as they see 

fit. Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 

535 (1925) (“The child is not the mere creature of the state; those who nurture 

him and direct his destiny have the right, coupled with the high duty, to 

recognize and prepare him for additional obligations.”); Wisconsin v. Yoder, 406 

U.S. 205, 233 (1972) (“The duty to prepare the child for ‘additional 

obligations,’ referred to by the [Pierce] Court, must be read to include the 
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inculcation of moral standards, religious beliefs, and elements of good 

citizenship.”). The Indiana Supreme Court has also outlined the importance of 

the right to parenthood, stating a “parent’s interest in the care, custody, and 

control of his or her children is perhaps the oldest of the fundamental liberty 

interests.” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake 

Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005) (internal quotation 

marks omitted)). 

[21] Some states4 have adopted a version of Section 706 of the Uniform Parentage 

Act (2000). Section 706(a) provides:

If a marriage is dissolved before placement of eggs, sperm, or an 

embryo, the former spouse is not a parent of the resulting child 

unless the former spouse consented in a record that if assisted 

reproduction were to occur after a divorce, the former spouse 

would be a parent of the child. 

Under such statutes, although the former spouse has procreated or consented to 

procreation, the former spouse may opt out of legal parenthood. But cf. Straub v. 

B.M.T. by Todd, 645 N.E.2d 597, 598 (Ind. 1994) (holding a contract absolving 

the father of child support was void and unenforceable because it would deprive 

the child of parental support).5

4 These states include Alaska, Colorado, Connecticut, Delaware, Illinois, Maine, New Mexico, North 

Dakota, Rhode Island, Texas, Utah, Vermont, Washington, and Wyoming. 

5 In its order, the trial court states, “Mother has unequivocally stated that she will require no financial 

support from [Father], so he is relieved of this burden.” Appellant’s App. Vol. 2 at 29. We note Indiana law 
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[22] Mother contends Father’s right to procreation “is moot given the fact that he 

already consented to it when providing his sperm to fertilize [Mother’s] egg.” 

Appellee’s Br. at 11. Father argues the trial court’s award of the pre-embryo to 

Mother for implantation strips Father of his right to decide whether to 

procreate. Father’s argument assumes but does not provide legal authority to 

explain how the trial court’s order amounts to state action. 

[23] According to the Fourteenth Amendment to the United States Constitution:

No State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall 

any State deprive any person of life, liberty, or property, without 

due process of law; nor deny to any person within its jurisdiction 

the equal protection of the laws. 

“Because the Amendment is directed at the States, it can be violated only by 

conduct that may be fairly characterized as ‘state action.’” Lugar v. Edmondson 

Oil Co., 457 U.S. 922, 924 (1982). To be considered “state action,” the conduct 

causing the deprivation of a federal right must be “fairly attributable to the 

State.” Id. at 937. In determining whether the right is fairly attributable to the 

State, courts conduct a two-step analysis. First, the deprivation must be caused 

by the exercise of some right or privilege created by the State or by a rule of 

conduct imposed by the State or a person for whom the State is responsible. Id. 

indicates otherwise. See Schwartz v. Heeter, 994 N.E.2d 1102, 1107 (Ind. 2013) (“[C]hild support payments are 

for the benefit of children . . . [and] [m]other could not bargain them away, . . . even at [f]ather’s urging.”). 

Neither party raises the issue of child support on appeal. 
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Second, the party charged with the deprivation must be a person who may 

fairly be said to be a “state actor.” Id. Without this second inquiry, “private 

parties could face constitutional litigation whenever they seek to rely on some 

state rule governing their interactions with the community surrounding them.” 

Id. 

[24] The two inquiries “collapse into each other when the claim of a constitutional 

deprivation is directed against a party whose official character is such as to lend 

the weight of the State to his decisions.” Id. The inquiries “diverge when the 

constitutional claim is directed against a party without such apparent authority, 

i.e., against a private party.” Id. Action by a private party pursuant to a statute, 

without something more, does not justify a characterization of that party as a 

“state actor.” Id. at 939.

[25] Here, the trial court resolved a family law dispute between private parties—

indeed, on an issue the parties chose to leave open to judicial determination 

through their cryopreservation agreement.

6

 It is the trial court’s role to divide 

property and determine child custody when dissolving marriages. See Ind. 

Code §§ 31-15-7-5 & 31-30-1-12.7

 In this role, the trial court must balance

parties’ competing fundamental rights. The trial court here merely provided a 

6 We urge parties signing cryopreservation agreements to carefully consider the consequences of such 

agreements should they later separate.

7 Trial courts also determine child custody for unmarried parents, I.C. § 31-14-10-1, and provide relief in 

property disputes when unmarried couples separate, Neibert v. Perdomo, 54 N.E.3d 1046, 1051–52 (Ind. Ct. 

App. 2016).
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neutral forum to resolve a private dispute. This is insufficient state action to 

implicate Fourteenth Amendment protections. The disposition of a preembryo—which we will categorize below as being between a person and 

property—may therefore properly be determined by the trial court.

4. Pre-Embryos Are Entitled to Special Respect

[26] The ways courts have classified pre-embryos—as property, persons, or an 

interim category—impacts the outcome of pre-embryo disposition cases. 

Jurisdictions that find pre-embryos are personal property can treat the preembryos as any other marital property and apply their states’ property division 

regimes. See In re Marriage of Dahl and Angle, 194 P.3d 834, 841 (Or. Ct. App. 

2008) (“[In the context of pre-embryo dispositions,] we review de novo the trial 

court’s division of marital property, [and] we review the award itself for the 

proper exercise of discretion.”); Kotkowski-Paul v. Paul, 204 N.E.3d 66, 76 (Ohio 

Ct. App. 2022) (“[T]he trial court did not err in concluding the subject embryos 

are marital property subject to allocation as part of the division of such 

property.”). 

[27] Louisiana classifies an “in vitro fertilized human ovum” as “a biological human 

being which is not the property of the physician which acts as an agent of 

fertilization, or the facility which employs him or the donors of the sperm and 

ovum.” La. Stat. Ann. § 9:126 (1986). “A court in the parish where the in vitro 

fertilized ovum is located may appoint a curator upon motion of the in vitro 
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fertilization patients, their heirs, or physicians who caused in vitro fertilization 

to be performed, to protect the in vitro fertilized human ovum’s rights.” Id. 

[28] Most courts that have addressed this issue, following the approach taken by the 

Tennessee Supreme Court in Davis v. Davis, find pre-embryos “occupy an 

interim category that entitles them to special respect because of their potential 

for human life.” 842 S.W.2d 588, 597 (Tenn. 1992), cert. denied. Under this 

rationale, pre-embryos cannot be valued and divided as other marital property. 

[29] Here, neither party argues the trial court erred in classifying the pre-embryo as 

deserving “special respect.” But Father argues the trial court erred in finding

the embryos deserved special respect to the extent it did so because of the 

State’s interest in them, which Father claims is not supported by outside 

jurisdictions. At oral argument, Father’s counsel drew this Court’s attention to 

Indiana Code Section 16-34-1-0.5, which explicitly excludes IVF from Indiana’s 

statute prohibiting abortion. 

[30] The United States Supreme Court has afforded recognition and some State 

protection to human embryos at the earliest stages of development. In vitro preembryos and in utero pre-embryos share a potential for human life that sets them 

apart from property. We agree with the trial court that Roe v. Wade, 410 U.S. 

113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 

(1992)—though overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 

215, 215 (2022)—continue to offer helpful discussions about how the law views 

nascent human life. The Roe court acknowledged the State has an “important 
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and legitimate interest in protecting the potentiality of human life.” Roe, 410 

U.S. at 162. The Casey court decided “the State may take measures to ensure 

that the woman’s choice is informed” in order to “promote the State’s profound

interest in potential life, throughout pregnancy[.]” Casey, 505 U.S. at 878. 

[31] Indiana law supports the trial court’s determination that pre-embryos deserve 

special respect. The Indiana Supreme Court has found “our laws have long 

reflected that Hoosiers, through their elected representatives, may collectively 

conclude that legal protections inherent in personhood commence before birth, 

so the State’s broad authority to protect the public’s health, welfare, and safety 

extends to protecting prenatal life.” Members of Med. Licensing Bd. of Ind., 211 

N.E.3d at 961. And Indiana Code Section 16-34-2-1.1 requires a woman 

seeking a legal abortion to sign a consent form acknowledging “human physical 

life begins when a human ovum is fertilized by a human sperm.” But that 

definition of human life “does not apply to in vitro fertilization.” I.C. § 16-34-

1-0.5. Therefore, although Indiana law attributes “human physical life” to 

fertilized eggs in utero, it sets pre-embryos in vitro apart. As such, we cannot say

in vitro frozen pre-embryos are entitled to personhood under Indiana law. 8

[32] Thus, pre-embryos, as neither property nor persons, are in a separate category 

that entitles them to special respect. Father and Mother do not have a true 

8 We discuss abortion caselaw and statutes in this section only to the extent they illustrate courts’ 

understandings of prenatal existence. As is apparent from Indiana Code Section 16-34-1-0.5, Indiana law 

treats pregnancy and abortion, which occur in utero, differently from IVF, which occurs in vitro—ex utero. 
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property interest in the pre-embryos, but “they do have an interest in the nature 

of ownership, to the extent they have decision-making authority concerning 

disposition of the preembryos, within the scope of policy set by law.” Davis, 

842 S.W.2d at 597.

5. Other Jurisdictions’ Approaches to Pre-Embryo 

Disposition 

[33] Generally, states have taken three approaches in pre-embryo disposition cases: 

the contract approach, the balancing test approach, and the contemporaneous 

mutual consent approach. In practice, courts do not strictly adhere to just one 

of these approaches, generally applying some combination. 

[34] The contract approach is the preferred method of deciding pre-embryo 

disposition cases, but in many cases, courts find nothing in the contract 

revealing the parties’ preference for pre-embryo disposition in the case of 

separation or dissolution. When contracts do not contain such a provision, 

most states adopt the balancing approach, weighing the parties’ interests against 

each other. This weighing usually involves one party’s interest in using the preembryo to attempt to bring a child to term and one party’s interest in avoiding 

procreation by discarding the pre-embryos or leaving the pre-embryos frozen. 

Finally, a few states have adopted the contemporaneous mutual consent 

approach, which maintains the status quo indefinitely (leaving the pre-embryos 

frozen) until the parties agree on the disposition of the pre-embryos.
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5.1 The Contract Approach

[35] Appellate courts in other jurisdictions generally attempt to honor the agreement 

between the couple and the pre-embryo storage facility. Most of these courts 

prescribe the contract approach first and explain that only after determining 

there is not an applicable agreement should courts move on to another 

approach. By enforcing the terms of the parties’ agreement with the 

cryopreservation clinic, courts can ensure predictability and honor the original 

intent of the parties. See Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. Ct. 

2013). 

[36] Courts following the contract approach treat the contract for the disposition of 

the pre-embryos no differently than other contracts, leaving open the same 

defenses and interpretation regimes. See, e.g., Bilbao v. Goodwin, 217 A.3d 977, 

980 (Conn. 2019) (holding the checkbox nature of the cryopreservation 

agreement did not render it insufficient); see also McQueen v. Gadberry, 507 

S.W.3d 127, 156 (Mo. Ct. App. 2016) (holding the party seeking to enforce a 

cryopreservation directive did not prove by clear and convincing evidence the 

directive was a valid and enforceable agreement between the parties). Indeed, 

such courts have reasoned “[t]he subject of this dispute may be novel but the 

common-law principles governing contract interpretation are not.” Kass v. Kass, 

696 N.E.2d 174, 180 (N.Y. 1998). 

[37] But the Supreme Judicial Court of Massachusetts, like other critics of the 

contract approach, noted the approach does not leave room for one or both 

parties’ change of heart. A.Z. v. B.Z., 725 N.E.2d 1051, 1059 (Mass. 2000)
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 19 of 30

(“[P]rior agreements to enter into familial relationships (marriage or 

parenthood) should not be enforced against individuals who subsequently 

reconsider their decisions.”). 

5.2 The Balancing Approach

[38] Most jurisdictions, if they cannot resolve the issue by enforcing the 

cryopreservation agreement, follow the balancing approach taken in Davis. 

There, the Tennessee Supreme Court stated: 

[D]isputes involving the disposition of preembryos produced by 

in vitro fertilization should be resolved, first, by looking to the 

preferences of the progenitors. If their wishes cannot be 

ascertained, or if there is dispute, then their prior agreement 

concerning disposition should be carried out. If no prior 

agreement exists, then the relative interests of the parties in using 

or not using the preembryos must be weighed. Ordinarily, the 

party wishing to avoid procreation should prevail, assuming that 

the other party has a reasonable possibility of achieving 

parenthood by means other than use of the preembryos in 

question. If no other reasonable alternatives exist, then the 

argument in favor of using the preembryos to achieve pregnancy 

should be considered. However, if the party seeking control of 

the preembryos intends merely to donate them to another couple, 

the objecting party obviously has the greater interest and should 

prevail.

842 S.W.2d 588 at 604. 

[39] Courts following the approach in Davis have outlined several considerations for 

trial courts balancing the parties’ interests:
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(1) the intended use of the frozen pre-embryos by the party 

seeking to preserve them; (2) the reasonable ability of a party 

seeking implantation to have children through other means; (3) 

the parties’ original reasons for undergoing IVF, which may 

favor preservation over disposition; (4) the potential burden on 

the party seeking to avoid becoming a genetic parent; (5) either 

party’s bad faith and attempt to use the frozen pre-embryo as 

leverage in the divorce proceeding; and (6) other considerations 

relevant to the parties’ unique situation.

Jocelyn P. v. Joshua P., 250 A.3d 373, 380 (Md. Ct. Spec. App. 2021); see also In re 

Marriage of Rooks, 429 P.3d 579, 593 (Colo. 2018), cert. denied.

[40] Father, like other critics of the balancing test approach, claims the approach 

puts the court in the position to make reproductive decisions for the parties—

thereby inevitably violating one of the parties’ right to procreation. And courts’ 

determinations under the balancing test are fact-specific, leading to less 

predictable results for the parties.

5.3 The Contemporaneous Consent Approach

[41] A few courts have adopted the contemporaneous mutual consent approach—

the approach Father suggests we take. Under this approach, neither party may 

determine pre-embryo disposition without the present consent of the other 

party. As discussed earlier, the Supreme Judicial Court of Massachusetts 

adopted the contemporaneous consent approach, finding the agreement at issue 

was “not a separation agreement that is binding on the couple in a divorce 

proceeding pursuant to [Massachusetts’ alimony statute].” A.Z., 725 N.E.2d at 

1057. The court said its “Legislature has already determined by statute that 
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 21 of 30

individuals should not be bound by certain agreements binding them to enter or 

not enter into familial relationships.” Id. at 1158. 

[42] The Iowa Supreme Court has determined cryopreservation agreements are not 

enforceable when one of the parties later changes his or her mind. In re 

Marriage of Witten, 672 N.W.2d 768, 777 (Iowa 2003). The Witten court 

reasoned “it may be impossible to make a knowing and intelligent decision to 

relinquish a right in advance of the time the right is to be exercised.” Id.

(internal quotation omitted). The Witten court also noted the contemporaneous 

consent approach adheres to Iowa law by allowing the parties “to make family 

and reproductive decisions based on their current views and values” with an 

“awareness that such decisions are highly emotional in nature and subject to a 

later change of heart.” Id. at 782. 

[43] The Davis court explicitly decided against the contemporaneous consent 

approach in part because when the case was decided in 1992, frozen preembryos could only survive for two years. The Davis court determined applying 

the contemporaneous consent approach would grant the party seeking to avoid 

procreation “the inherent power to veto any transfer of the preembryos . . . and 

thus to insure their eventual discard or self-destruction.” Davis, 842 S.W.2d at 

598. 

[44] Although cryopreservation clinics can now store pre-embryos indefinitely, the 

concern about granting one party a de facto veto persists. In Jocelyn P., the 

Maryland Court of Special Appeals criticized the contemporaneous consent 
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approach as creating a de facto veto over the party seeking to use the preembryo by avoiding any resolution until the issue is mooted and as a way to 

punish soon-to-be ex-spouses. 250 A.3d at 397. The Pennsylvania Superior 

Court called the approach “totally unrealistic” because if the parties could come 

to an agreement, they would not be before the court. Reber v. Reiss, 42 A.3d 

1131, 1135 n.5 (Pa. Super. Ct. 2012).

5.4 Deference to Trial Court

[45] Some appellate courts, rather than explicitly adopt one of the three approaches, 

defer to the decision of the trial court. See Reber, 42 A.3d at 1136 (determining 

without explicitly adopting a test that the balancing approach used by the trial 

court was the most suitable); see also McQueen, 507 S.W.3d at 157 (“Multiple 

decisions from our Court indicate that [the statute governing the division of 

marital property] does not prohibit courts from awarding property to parties 

jointly in unusual circumstances where the property cannot be justly divided.”). 

6. Application

6.1 The cryopreservation agreement is inconclusive about the disposition of the 

pre-embryo

[46] We agree with the courts that first look for an enforceable agreement regarding 

the disposition of the pre-embryos in the event of divorce. This approach 

allows trial courts to attempt to honor both parties’ interests and rights 

regarding procreation: “[B]inding agreements ‘minimize misunderstandings 

and maximize procreative liberty by reserving to the progenitors the authority 
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 23 of 30

to make what is in the first instance a quintessentially personal, private 

decision.’” Rooks, 429 P.3d at 592 (quoting Kass, 696 N.E.2d at 180).

[47] Mother and Father do not challenge the trial court’s finding that the contract 

does not contain a directive on the disposition of the pre-embryo if Mother and 

Father’s marriage dissolves. And we agree with the trial court’s conclusion that 

Mother and Father offered no directive in the cryopreservation contract 

regarding the disposition of the pre-embryo upon the dissolution of the parties’ 

marriage. Thus, we must resolve this dispute some other way.

6.2 We reject the contemporaneous consent approach

[48] Father proposes we adopt the contemporaneous consent approach, which 

“ensures that each of the Parties’ respective constitutional right to procreate, or 

not to procreate, is protected from government intrusion.” Appellant’s Br. at 21. 

But the facts of this case underscore the inequities of the contemporaneous 

consent model. Father’s participation in the IVF process indicates he decided 

to exercise his positive right to procreate in 2018. Mother and Father 

underwent IVF because Mother had low ovarian reserve. They both hoped for 

two children—two full biological siblings. Two rounds of IVF resulted in only 

four eggs. Rather than choosing to preserve Mother’s unfertilized eggs after 

retrieval, the parties decided to use Father’s sperm to fertilize all of them. 

Transfer of the first pre-embryo resulted in miscarriage. Then, at a time when 

their marriage “was definitely not good” and after they had discussed divorce, 

Mother and Father underwent a second transfer of two pre-embryos. One 

child, G., was born and one pre-embryo remains. The parties’ cryopreservation 
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 24 of 30

contract provides no advanced directive for disposition of this pre-embryo in the 

event the parties’ relationship ends. Now, after Mother has relied on Father’s 

consistent participation over a course of years, Father seeks to withdraw from 

the process and prevent Mother’s use of the pre-embryo, leaving Mother with 

little—if any—chance to conceive and give birth to another biological child. 

Meanwhile, Father remains physically able to procreate. 

[49] We must agree with courts that have found the contemporaneous consent 

approach “totally unrealistic.” Reber, 42 A.3d at 1135 n.5. If parties could 

agree on their own about the disposition of the pre-embryo upon divorce, they 

would have no need of the court’s intervention. Jurisdictions following this 

approach ignore any preexisting agreement between the parties if one or both 

parties has a change of heart. This creates legal uncertainty and eliminates any 

reason for parties to form an agreement regarding the disposition of preembryos upon divorce. 

[50] Contrary to honoring both parties’ interests and procreation rights, the 

contemporaneous consent approach promotes a clear winner: the party seeking 

to avoid procreation. The party seeking to avoid procreation may simply never 

agree to the use of the pre-embryos, which would remain frozen indefinitely.

Such a solution would provide the party avoiding procreation with a de facto 

veto and an incentive to leverage this issue in bad faith.

[51] The contemporaneous consent approach would require trial courts to abandon 

their role in dissolution proceedings for the issue of pre-embryo disposition. 
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Indiana Code Section 31-15-7-4(b) instructs courts to divide marital property 

“in a just and reasonable manner.” And the trial court has broad discretion

both in “ascertaining the value of property in a dissolution action,” Quillen v. 

Quillen, 671 N.E.2d 98, 102 (Ind. 1996), and in determining equitable division 

of the property, In re Marriage of Perez, 7 N.E.3d 1009, 1010–12 (Ind. Ct. App. 

2014); I.C. § 31-15-7-5 (“The court shall presume that an equal division of the 

marital property between the parties is just and reasonable. However, this 

presumption may be rebutted by a party who presents relevant evidence . . . that 

an equal division would not be just and reasonable[.]”) Indiana Code Section 

31-30-1-12 describes the trial court’s jurisdiction to determine child custody in 

marriage dissolutions.

9

 Pre-embryos are not common marital property nor are 

they children; they exist in an interim category between the two. This interim 

category is logically included in family law cases, so “[w]e cannot simply do 

nothing.” Rooks, 429 P.3d at 592.

6.3 We adopt the balancing approach

[52] If the contract approach does not resolve the parties’ dispute, the trial court 

should then seek to balance the parties’ interests. The balancing approach 

reflects Indiana trial courts’ role in dissolution proceedings: Mother and Father 

have an interest in disposition of the pre-embryo after their divorce, and the trial 

9 Trial courts also resolve issues of child custody and property division for unmarried parties. See supra n.7.
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 26 of 30

court must weigh their interests and award the pre-embryo “in a just and 

reasonable manner.” I.C. § 31-15-7-4(b). 

[53] Because pre-embryos are entitled to special respect, certain factors must be 

considered when balancing the parties’ interests. We agree with the factors as 

listed in Jocelyn P. and Rooks and state them as: (1) the intended use of the preembryos by the party seeking to preserve them; (2) the reasonable ability of the 

party seeking implantation to have children through other means; (3) the 

parties’ original reasons for undergoing IVF, which may favor preservation over 

disposition; (4) the potential burden on the party seeking to avoid becoming a 

genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as 

leverage in the dissolution proceeding; and (6) other considerations relevant to 

the parties’ unique situation.

[54] When weighing the parties’ interests, trial courts should not consider “whether 

the party seeking to become a genetic parent using the pre-embryos can afford 

another child.” Rooks, 429 P.3d at 594. And “the sheer number of a party’s 

existing children, standing alone,” is not “a reason to preclude preservation or 

use of the pre-embryos.” Id. Finally, because genetic and gestational 

parenthood are distinct from parenthood through adoption, “courts should not 

consider whether a spouse seeking to use the pre-embryos to become a genetic 

parent could instead adopt a child or otherwise parent non-biological children.” 

Id. 
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[55] There is language within Davis that, though judicious for the facts therein, 

might stifle other trial courts’ abilities to fairly balance the parties’ interests.

The Davis court determined although “women contribute more to the IVF 

process than men,” “[t]heir experience . . . must be viewed in light of the joys of 

parenthood that is desired or the relative anguish of a lifetime of unwanted 

parenthood.” 842 S.W.2d at 601. And the statement that “[o]rdinarily, the 

party wishing to avoid procreation should prevail” creates a rebuttable 

presumption against the party seeking to use the pre-embryo to procreate. Id. at 

604; see Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law’s Malecentric Approach to Embryo Disputes After Thirty Years of Jurisprudence, 34 Yale J.L. 

& Feminism 1, 3–4 (2023). 

[56] These comparisons and presumptions proceed from the facts of Davis. There, 

the husband’s troubled and fatherless upbringing made him particularly 

sensitive to the prospect of creating a child he would be unable to raise. Even 

though the wife sought to donate the pre-embryos, the husband was worried the 

couple receiving the pre-embryos might give birth to a child and eventually 

divorce, leaving the child to suffer an upbringing like the husband’s. We 

decline to adopt a presumption in favor of either party. 

[57] Here, the trial court identified factors identical to those we have adopted and 

determined a consideration of the factors favors Mother. The trial court 

explained:

83. Mother does not request that the embryo be awarded to 

another female or couple for uterine implantation nor does she 
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 28 of 30

seek to have the embryo donated for purposes of scientific 

research. She plainly seeks to have the embryo implanted in her 

uterus with the hope of producing a biological child. Her 

medical condition, the existence of which is unchallenged by 

Father, operates as a substantial impediment to natural 

conception, as does her advancing age. There is no evidence of 

bad faith by either party. The original reason for in vitro 

fertilization is consistent with the very purpose for which Mother 

seeks to use the embryo . . . to beget a biological sibling for [G.]. 

Finally, Mother’s insurance will cover the cost of this final 

uterine implantation. Thereafter, the significant costs of any 

future in vitro fertilization will be borne by Mother without 

recompense by her health insurer.

84. As it relates to Father, Mother has unequivocally stated that 

she will require no financial support from him, so he is relieved

of this burden. There is, however, another burden . . . and a 

significant one . . . placed upon Father by way of Mother’s 

request. That burden comes in the form of an emotional weight 

he is forced to carry by being compelled to [f]ather a child he will 

not raise in the context of an intact, nuclear family. It was clear 

to this court that Father’s desire to avoid this very heartache was 

the principal basis for his request that the embryo be destroyed. 

This factor weighs heavily in favor of Father, but, in this court’s 

estimation, does not overcome the other factors which tilt in 

Mother’s favor.

Appellant’s App. Vol. 2 at 28–29.10

10 After weighing Mother’s and Father’s interests under the factors enunciated in Jocelyn P. and Rooks, the 

trial court proposes the consideration of “how the parties’ competing requests impact the pre-embryo,” which 

the trial court frames as “the termination of the pre-embryo” versus “the possibility of viability and life.” Id.

at 30–31. But this factor creates a presumption for the party seeking implantation, and we do not adopt it

here.
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 29 of 30

[58] Father appeals the trial court’s use of the balancing test, not the trial court’s 

balancing of the factors in favor of Mother. And although we disagree with the 

trial court’s statement that Father is relieved of the potential burden of child 

support, the error is harmless. Father’s testimony focused on the emotional—

not financial—burden of raising a child outside of marriage. He explained his 

preference for discarding the pre-embryo arises from “the fact that [he] would 

not be present . . . in that child’s life” because he and Mother would be 

divorced. Tr. Vol. 2 at 24. Father described how it was already difficult for him 

to raise G. in that context. Father did not provide evidence of—and the trial 

court placed little emphasis on—any financial burden an additional child would 

place on Father. Further, the pre-embryo has not resulted in the birth of a 

child, and any questions regarding support are hypothetical. The parties are 

litigating the disposition of the pre-embryo, not potential support of a potential 

child. That issue would require a separate hearing when the issue is squarely 

before the court. 

[59] At bottom, the trial court applied the appropriate test, balancing the parties’ 

interests using the appropriate factors.

Conclusion

[60] On the issue of pre-embryo disposition, trial courts should first look to any 

existing agreement between the parties to determine whether the parties 

memorialized their intentions for the pre-embryos upon their separation or 

divorce. If there is no applicable provision, the trial court’s role and discretion 

in dividing marital property and determining child custody leads us to conclude 
Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 30 of 30

that balancing the parties’ interests is the most appropriate way to address preembryo disposition upon divorce. But because pre-embryos are entitled to 

special respect, factors beyond those outlined in Indiana Code Chapter 31-15-7 

must be considered. These additional factors include: (1) the intended use of 

the pre-embryos by the party seeking to preserve them; (2) the reasonable ability 

of the party seeking implantation to have children through other means; (3) the 

parties’ original reasons for undergoing IVF, which may favor preservation over 

disposition; (4) the potential burden on the party seeking to avoid becoming a 

genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as 

leverage in the dissolution proceeding; and (6) other considerations relevant to 

the parties’ unique situation.

[61] Here, the trial court applied the appropriate test and considered the appropriate 

factors. Accordingly, we affirm.

[62] Affirmed.

Foley, J., and Felix, J., concur.