The Law and Ethics of a Property Rights Approach to Frozen Embryo Disputes

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.