According to the Centers for Disease Control and Prevention, in 2012 alone, there were 65,000 births in the United States resulting from assisted reproduction technology, (Centers for Disease Control and Prevention, American Society for Reproductive Medicine, Society for Assisted Reproductive Technology. 2012 Assisted Reproductive Technology National Summary Report. Atlanta: U.S. Department of Health and Human Services; 2014). Although in vitro fertilization, the external fertilization of the egg and subsequent implantation of the fertilized egg into the mother's uterus, has been utilized for a number of years, the development of cryogenic techniques has added a new dimension. Instead of immediate implantation of the fertilized egg, it is allowed to grow to an embryo of a certain size and is then frozen. The frozen fertilized embryo (FFE) can be maintained in cryogenic storage for a long period of time until it is thawed and implanted into a uterus.

The existence of a FFE in the context of a divorce presents complicated ethical and policy questions of reproductive rights that have not been answered by legislators or the courts. Cryopreservation injects into divorce proceedings the issue of whether one partner's right to reproduce and the FFE's right to life outweigh the other partner's reproductive and privacy rights. Currently there are no federal regulations governing the disposition of FFE's and states have struggled, but have thus far, failed to enact legislation addressing the use and treatment of FFEs.

Recently, the U.S. Supreme Court declined to hear an FFE case, making it clear that it would be leaving the state courts and legislatures to decide how to treat and classify the embryo, and to weigh rights of the parties in Szafraski v. Dunston, 34 N.E.3d 1132 (Ill. Ct. App. 2015) cert. denied, 136 S.Ct. 1230 (2016).