As couples increasingly turn to assisted reproductive treatments in order to have children, complex questions have arisen surrounding the disposition of their embryos in a divorce. In the absence of a prenuptial agreement, courts have generally taken one of three approaches: "contractual," "contemporaneous mutual consent" or "balancing."

Most common is the contractual approach. In Kass v. Kass, 91 N.Y.2d 554 (1998), the Court of Appeals stated that "[a]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them." Id. at 565.

This stance has critics. The Supreme Court of Iowa held "that it would be against the public policy of this state to enforce a prior agreement between the parties in this highly personal area of reproductive choice when one of the parties has changed his or her mind concerning the disposition or use of the embryos." In re Marriage of Witten, 672 N.W.2d 768, 781 (2003). The Iowa court stated, "[w]e have considered and rejected the arguments of some commentators that embryo disposition agreements are analogous to antenuptial agreement and divorce stipulations, which courts generally enforce." Id. Explaining, the Iowa court said, "[w]hether embryos are viewed as having life or simply as having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements." Id.