The Evolution of ART

Select events, case law and other developments
Adapted in part from Legal Conceptions by Susan L. Crockin and Howard W. Jones (see reference note).


Birth of Louise Brown, first IVF-conceived live birth. Steptoe and Edwards (UK)


DelZio v. Presbyterian Hospital, 1978 U.S. Dist. LEXIS 14450 (SDNY 1978)  First U.S. lawsuit for inadvertently destroyed fresh embryos:  patients prevailed on basis of emotional distress (wife awarded $50,000, husband awarded $3.00)


Second live birth of child conceived from IVF (Australia)


First live birth of IVF-conceived child in the U.S. , Norfolk, VA-Dr. Howard Jones and team.


Medical developments including ovarian stimulation to increase number of eggs available for retrieval, ultra-sound guided egg retrieval under local anesthesia, and first live birth from a donated egg.


First reported successful gestational surrogacy arrangement.


First state mandate by statute for IVF coverage (Maryland); in 1987, Massachusetts becomes first state to statutorily require coverage for infertility diagnosis and treatment, including IVF.


Medical developments including first live birth from cryopreserved egg, first live birth after pre-implantation genetic diagnosis (PGD) to screen and avoid a specific disease (here, cystic fibrosis), and first live birth after intracellular sperm injection (ICSI).


First reported U.S. case concerning ownership and control, as between progenitors and the physician, of a stored embryo.  The court considered the case under property principles, without reaching questions regarding status of the embryo, and held that the creators, who were the intended parents, owned the embryo and could control disposition.  York v. Jones, 717 F. Supp. 421 (D. Va. 1989).


Decision in first reported case involving divorcing couple with stored embryos.  This decision gave rise to the “…special respect because of their potential for human life” language regarding embryos.  The husband was objecting to the use of the embryos for procreation, and the court found that his right to not reproduce trumped the wife’s right to do so.  Davis v. Davis, 842. S.W. 2d 588 (Tenn,1992)


First U.S. case holding that legal, medical and other professionals have a duty of care to a third-party reproductive collaborator (here, a gestational surrogate) because of having recruited her. Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992: reh. en banc denied)


First disputed gestational surrogacy parentage case decided in favor of intended mother:  intention trumps, when each woman has a claim (here, intended mother was genetic mother and carrier gestated).  Johnson v. Calvert, 5 Cal. 4th 84 (Cal. 1993), cert. denied, 510 U.S. 874 (1993)


U.S. Supreme Court defines reproduction as a major life activity under the Americans with Disabilities Act.  Bragdon v. Abbott, 24 U.S. 624 U.S. 624
(U.S. 1998)


First U.S. case of divorcing couple disagreeing about disposition of stored embryos, where original agreement allowed for one of them to use embryos for procreation.  Court ruled that the agreement was unenforceable as to the clause allowing for wife’s reproductive use of embryos, when husband had changed his mind.  A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000).  A string of cases with similar facts arose over the next decade, which followed the trend of no judicial enforcement of forced procreation.  More often that not, the prior agreement had not expressly allowed for one partner to use the embryos over the objection of the other, and the agreement provided for destruction or discarding of the embryos. Kass v. Kass, 696 N.E.2d 174 (N.Y.1998); Roman v. Roman, 193 S.W.3d 40 (Tex.2006); In re Marriage of Dahl & Angle, 194 P.3d 834, 841 (Or.Ct.App.2008)


Liability found on the part of medical practice for non-disclosure of egg donor’s carrier status for a serious genetic abnormality.  There was no dispute that the donor had tested positive and that this information was in the medical practice file. Paretta v. Med. Offices of Human Repro., et al. 195 Misc. 2d 568, 760 N.Y. s.2d 639 (2003), App. Withdrawn 6 A.D.3d 1249 (N.Y. App. Div. 2004)


Wrongful death claim regarding destroyed embryos rejected by Illinois appellate court.  Miller v. Am. Infertility Group of Ill., 844 N.E.2d 424 (Ill. 2006, rev’d 897 N.E.2d 837 (Ill. App. Ct. 2008)


Vitrification technique for freezing eggs first introduced, demonstrating better results than slow-freeze crypreservation.


Birth of octotuplets via multiple-embryo IVF transfer.


Pennsylvania appeals court applies a balancing test in a disputed embryo case where there was no recorded prior agreement, and decides in favor of wife, who wants the embryos for reproduction.  Due to fertility-ending aggressive cancer treatment, the embryos represented her only option of having a genetically-related child.  Reber v. Reiss, 2012 PA Super 86 (Pa.Super. 2012)


ASRM Practice Committee Opinion:  Elective Single Embryo Transfer should be offered to all patients with a good prognosis and to recipients of embryos created with donor egg.


ASRM Practice Committee Opinion:   mature oocyte vitrification and warming should no longer be considered experimental.


Mitochondrial DNA replacement therapy (also known as oocyte modification) in assisted reproduction for the prevention of transmission of mitochondrial disease and for  treatment of  infertility first considered by FDA for small-scale clinical trials.


Facebook and Apple are the first U.S. companies to offer their female employees elective egg freezing as an employee benefit.


U.S. Supreme Court affirms constitutionality of same-sex marriage.  Obergefell v. Hodges, 135 S Ct 2584 (2015)


California trial court holds that a pretreatment agreement, signed by husband and wife and documenting their election that stored embryos should be destroyed in the event of a divorce, is enforceable under California law.  The embryos were created in anticipation of the wife’s cancer treatment and at divorce, wife wanted them for procreative use.  Findley v. Lee,


Mitochondrial DNA replacement therapy approved by Human Embryology and Fertilization Authority (HFEA)


Susan L. Crockin and Howard W. Jones, Legal Conceptions:  The Evolving Law and Policy of Assisted Reproductive Technologies, The Johns Hopkins Univerity Press, 2010.

Ed Note: Dr. Jones was a true pioneer in this field, and from the outset, recognized with unparalleled clarity the intersection of law and medicine in ART. Dr. Jones’ appreciation of this necessary partnership led to a fortunate collaboration with Ms. Crockin, legal scholar, author, practitioner, law professor, and one of the first attorneys to practice in this area.   Dr. Jones’ and Ms. Crockin’s joint commentary and analysis is a thorough and illuminating overview of both aspects of ART, viewed through the lens of personal experience and mutual professional respect.