Dahl v. Angle: Oregon State Appeals Court Finds Frozen Embryos "Personal Property" in Divorce Proceeding

Dahl v. Angle Or. Ct. App., October 8, 2008, A133697 Slip Opinion

The Court of Appeals of the State of Oregon upheld the decision of the trial court to enforce a contract made between a now-divorced husband and wife regarding six frozen embryos resulting from the couple's attempt to conceive in vitro. The contract provided that, in the event of a disagreement, the wife would have the right to decide what would happen to the embryos. Necessary to the Court of Appeals’ decision was a finding that the contractual right to determine the fate of frozen embryos is personal property.

While married, the parties had unsuccessfully tried to conceive a child via in vitro fertilization, a process that left six frozen embryos at the Oregon Health and Science University ("OHSU"). The parties executed an "Embryology Laboratory Specimen Storage Agreement" at the time that they underwent the procedure, which gave the wife, Dr. Laura Dahl, the “sole and exclusive right” to instruct OHSU to transfer or dispose of the embryos in the event that the parties were not able to agree. Dr. Dahl chose to have the embryos destroyed, while her ex-husband, Dr. Darrell Angle, denied having initialed or read the agreement. He claimed that “embryos are life” and did not want the embryos destroyed because "there's no pain greater than having participated in the demise of your own child."

The Associated Press and CBS provide overviews of the case. 

Andy Dworkin of the Oregonian provides commentary. 

Dr. Angle argued that the embryos are marital property, and that therefore a “just and equal distribution” of this property would mean giving him the embryos because he values them as "life." Dr. Dahl argued that the embryos are not property and are therefore not within the purview of the court; she also argued that even if they are property, a court cannot not treat this property in a way that forces her to become a parent.

A three-judge panel of the Oregon State Court of Appeals, comprising judges Armstrong, Rosenblum, and Carson, held that the contractual right to possess or dispose of the frozen embryos was personal property subject to a “just and proper” distribution. The Court acknowledged the difficulty in defining such rights as “personal property,” and noted that this property right is fundamentally unique and distinct from most others, and cannot be measured by monetary value. 

Finding no controlling Oregon authority for such a case, the Court turned to two relevant decisions from Tennessee and New York, Davis v. Davis, 842 S.W.2d 588 (Tenn. Ct. App. 1992) and Kass v. Kass, 91 N.Y.2d 554 (N.Y. 1998).  Guided by these decisions, the court determined that the parties’ advance intent, as evidenced by the contract, should control, and thus awarded the decision-making authority to Dr. Dahl. 

This decision makes Oregon the eighth state to consider this situation and rule in favor of the party that did not want the embryos implanted. The Oregon decision is novel, however, in that it is the first of these decisions to hold that the contractual right to determine the fate of frozen embryos is property.