Health Care Tools

Certain health law issues catch fire and create debate within the public sphere. Two of these hot button issues are the right to die and embryo ownership. If you need the assistance of an experienced health law attorney, contact The Stevenson Law Firm, PC. in Pearland, Texas at (877) 336-3433 today.

Right to Die

Questions of medical treatment in end-of-life situations are sensitive and personal. In cases when the patient is still competent and has the capacity to make health care decisions for him or herself, the patient’s wishes should be honored apart from the most exceptional of circumstances. But in cases when the patient is found incompetent, incapacitated or otherwise unable to make his or her desires known and the treatment at issue is necessary to extend the length of life but may not improve the quality of it, it is much less clear what to do. State courts are split on how best to handle this type of situation. The three most common standards used by courts in these cases are:

  • Clear and convincing evidence: Some states will follow the patient’s oral wishes regarding end-of-life treatment if there is clear and convincing evidence of these wishes. State courts have differing standards for what is considered “clear and convincing” evidence.
  • Family surrogate decision-making: In other jurisdictions, the courts defer to the wishes of the family. Most states have enacted surrogate decision-making statutes that create a hierarchy among family members, determining who will have the final authority to make health care decisions in cases where the patient has not delegated the authority in an advance directive.
  • Best interest test: Some states employ the best interest test, in which the benefits and burdens on the patient from treatment are weighed against the benefits and burdens of treatment.

A protection people can take to ensure their wishes are followed in the case of incapacity is to have prepared an advanced health care directive with a living will and power of attorney. These documents can be used to memorialize the level of treatment and care a patient wishes to receive or decline in cases of end-of-life care and other scenarios in which the patient cannot express his or her wishes.

Embryo Ownership

When a couple is infertile or otherwise unable to have children naturally, they may decide to use in-vitro fertilization (IVF). When the couple divorces or ends their relationship and cannot agree on the disposition of the frozen embryos, the court must step in to decide the matter.

There are few bright-line rules when it comes to embryo ownership. The principle case is Davis v. Davis (842 SW2d 588) in which the court found that:

  • In cases where the parties have created a prior agreement stipulating what should happen to the embryos if the parties are no longer together, courts generally will uphold these agreements so long as the parties have not come to a new agreement since signing the original agreement. Most IVF programs now require parties to indicate in their consent forms how they want any unused embryos to be disposed.
  • In cases where one party wants to use the embryos to create a child and the other party does not, the court generally will find for the party who does not wish to create a child. Courts do not want to be engaged in forcing parenthood on someone who does not want it. However, if the parent wishing to create a child has no other reasonable opportunity of having children, the court may be more willing to find for the party desiring parenthood.

The law becomes less clear in cases of parties whose genetic material was not used to create the embryos. For example, in cases where the wife was infertile and the egg of another woman was used to create an embryo with the husband’s sperm. One court examining this particular scenario declined to find the wife had an interest in the embryos and allowed the father to dispose of them.


For more information on the right to die, embryo ownership or other health legal matters, contact The Stevenson Law Firm, PC. at (877) 336-3433 in the Houston suburb of Pearland, Texas.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.