Fuselier: When donor death leaves embryos from in vitro fertilization behind, property law should not be applied
By Jade Mardirosian
A professor at Baylor Law School received the Section award from the Real Property, Trust and Estate Law section of the American Bar Association.
Bridget Fuselier, associate professor of law at the Baylor Law School, received the Section Award for her article, “Pre-embryos in Probate: Property, Person or Something Else?” which appeared in the September 2010 issue of Probate and Property magazine.
“It’s a great honor and it’s nice to know people read my idea, liked it and thought it was worthy of comment,” Fuselier said.
The article discusses what should legally happen to embryos that have been frozen to use for in vitro fertilization, in the case that one or both of the donors die.
Fuselier described how this situation could become a legal problem.
“People that are trying to go through in vitro fertilization will have embryos created, usually as many as possible at one time,” Fuselier said. “What can end up happening is more embryos get created than can be used in one in vitro fertilization cycle, so they get stored by freezing them.”
In the article, Fuselier concludes that embryos should not be considered property by probate standards.
“Even if some property law concepts are used, embryos should not be considered probate property. They should be handled in a different way,” Fuselier said. “The last thing you want to happen is for the donors to die and their property to be distributed to six or seven people. How are they all supposed to decide what should happen with the embryos?”
Fuselier explains though sperm has previously been able to pass through a will, embryos should be treated in a special way.
Fuselier began thinking about this topic several years ago when she began teaching property law at Baylor Law School.
“I started looking at this topic for class and thought it was an area I want to research and maybe offer some suggestions and solutions that can make things better,” Fuselier said.
Thomas Featherston, also a professor at the Baylor Law School, serves as trusts and estates editor of Probate and Property magazine.
Featherston describes Fuselier’s article as “a cutting-edge study of the topic, and it proved to be of great interest to a wide variety of practicing lawyers.”
Featherston said he encouraged Fuselier to write the article and submit it to the magazine’s editorial board for consideration.
“The research and publication efforts of our faculty are being recognized by a national audience,” Featherston said. “This paper proved worthy to receive an award from a publication from practitioners who normally go their different way but recognized the value of this research.”
Fuselier has written an additional article that will be published in April, which develops the probate idea further and discusses how embryos should not be the subjects of petition.