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Are Frozen Embryos Property? Who Should Own Them?

By Walter Block

June 2, 2026

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What happens when the frozen fertilized eggs belong to a divorcing couple?

Ordinarily, such a question simply does not arise. The embryo develops into a precious baby, he (not it) is born, and that is the end of the matter. But what happens when the frozen fertilized eggs belong to a divorcing couple, one of whom wants them destroyed, and the other wishes them to mature and become persons? Flip a coin? Throw the dice? Go halfy-halfy? That is, divide these fetuses into two equal parts, and let each spouse take a half share? In that case, only 50% of them would be destroyed under our present assumption; the others would live.

For the correct answer, it all depends upon the proper legal status of the entities in question. If they are property, we can lean in the direction of a 50%-50% split. That is the way that the house, the car and the bank account, etc., are divided up under divorce, assuming no child support, roughly equal incomes, job prospects, health, etc.

There are two possible solutions to this quandary. First, the pro-choice perspective. Here, the fertilized eggs are akin to fingernails or an appendix that needs to be removed, or dead skin cells, or unwanted tonsils. These fetuses are in effect property and should be treated as such. To wit, divided in half, to be disposed of as each ex-marriage partner wishes.

Spouse A wants them to quicken, spouse B wishes them destroyed.

Second, the pro-life and the evictionist points of view. Both agree that human life begins not with birth, not when the fetal heart beats, nor when the fertilized egg attaches to the placenta, but rather immediately upon conception. Here, birth is merely a slight change of address from within the woman’s body into her arms.

So, now we have, say, a dozen frozen embryos. Spouse A wants them to quicken, spouse B wishes them destroyed. When seen in this light, the analysis is clear, and so is the verdict. If B has his way, 12 future infants will be murdered. A’s decision should be upheld by the courts.

Is the preborn baby just a bunch of cells, like saliva, or blood or cartilage?

But which perspective is correct? The preborn baby is just a bunch of cells, human cells to be sure, but merely cells, like saliva, or blood or cartilage. The fetus in his (not “its”) 9th month, an hour away from natural delivery, may be killed without any legal repercussions?

It is truly amazing that anyone could seriously hold this position. And yet, some do, albeit many, perhaps most, who wish to give the woman a choice during the term of pregnancy do not want such a choice to go on until the very last minute. But this is precisely the pure pro-choice position. The point here, is that many people who are vaguely pro-choice do not apply this position fully, to its logical conclusion. If it is “woman’s body, woman’s choice” why should it stop even one minute before birth? It is still her body, even then.

The foregoing is implicitly predicated upon the principle that people own their own body parts. The male owns the sperm, the female owns the egg. Since the fertilized egg consists of a contribution from each of them, we were operating under the assumption that they are partners, part owners, of each.

This hypothesis is subject to several objections. One of them is that the woman alone, not the man, should own the fertilized egg, or at least 99.9% of them. Given that she has exceedingly more than a 50% ownership right, the lion’s share of the decision about what to do with regard to these exceptionally young human beings should fall to her. Why? This is because eggs are more precious than sperm. How can any such claim be maintained? This is due to the economic principle that other things equal, the more there is of a good or service, the less value an additional amount of it can garner. You place a high value on the first apple, or beer, or computer you have; after that (ordinally), or at least eventually in some views (cardinality), diminishing returns sets in and each subsequent unit is worth less.

Well, how many eggs does a woman have? If she starts at 13 and continues to 43, and produces one per month, that adds up to 360. How many sperm does a man have? That is almost a silly question. Let us just say far more than the woman. Consider a “partnership” creating apples, beer or computers wherein one “partner” contributes $1 billion, and the other “partner” donates $1. Surely the former would have far more than a 50% share in the enterprise, according to this line of reasoning.

On the other hand, both contributions are necessary; neither is sufficient. Without the sperm, no matter how many of them there are out there, no baby is possible. What is to be done when there is no contract between the two parties beforehand stipulating what is to occur in this matter? I plump for the wife in this case; maybe not to the degree of 99.9%, but far more than 50%.

A similar analysis applies to who determines the fate of a nine-month-old fetus, one hour away from delivery: the husband or the wife? Here, we apply the John Lockean notion of ownership based upon labor input, namely, homesteading. How much work did the man put into the creation of this very young person? One sperm and no more than a few minutes “labor” was required. What about the woman? The same amount of initial “labor” at the outset, plus roughly nine months of mixing her labor with the baby during pregnancy. Again, we are nowhere near anything like an equal contribution. Thus, to the degree that we support Locke’s homesteading theory, the mainstay of justice in property titles for just about everything else under the sun, we most accord to the woman virtually total control over decisions of this sort.

At present levels of medical technology, evictionism aligns with pro-choice in the first half year of pregnancy: an evicted unborn child will die.

We mentioned, above, a third position on the abortion issue, evictionism. What is that? It maintains that killing the fetus is never justified, along with the pro-lifers, but evicting it from the woman’s premises always is. The unwanted fetus is a trespasser. An innocent one, to be sure, but a trespasser nonetheless. This is pellucidly clear in the case of rape; but this holds even with voluntary sexual intercourse. There was no invitation to the fetus, because he did not even exist at that time; certainly there can be no contract with him, obligating the women not to evict him at any time.

At present levels of medical technology, evictionism aligns with pro-choice in the first half year of pregnancy: an evicted unborn child will die. In the last three months, it is congruent with pro-life. The evicted young child will live, despite any wishes to the contrary on the part of either parent.

 

 

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