The science of fertility has produced many wonders in recent years, allowing many people to have families after they thought they would never be able to have a biological child. For better or worse, it has also brought some unexpected legal issues. One new issue raised by science in divorce: Who gets custody of frozen embryos after a divorce?
New science, new issues
In some fertility treatments, scientists combine genetic material from a man and a woman who are unable to conceive. This creates an embryo, which doctors can implant in a woman so that she can bear the child. Because the process doesn’t always work, lab technicians typically fertilize multiple embryos and freeze them for later use.
This process can be a great help to a couple who are otherwise unable to conceive a child, but things get tricky when the couple decides to divorce. Should the embryos be treated like property, and divvied up in the distribution of marital property? Should the issue be decided more like child custody?
Typically, doctors ask couples to decide this issue in advance by signing an agreement when they begin the fertility process. Some couples decide any unused embryos at the end of the treatment should be destroyed or donated to science. Other couples choose an option for one of the spouses to decide when the time comes.
When done correctly, this agreement is legally binding. However, many couples don’t realize the legal nature of what they’re signing, because they are focused on the issues of fertility. Often couples who are seeking to have a baby are getting along very well, but the agreements they signed at that time feel very different when they are later going through a divorce.
The issues get even more complicated when one party is now completely incapable of conceiving a child, and so the frozen embryos represent their only hope of having a biological child. If the other partner, in the midst of divorce, decides they don’t want a baby, the dispute becomes very serious and very personal. In one case in a different state, the state’s supreme court ruled against a woman who wanted to use embryos fertilized with her then-husband because, after the couple divorced, the man no longer wanted to go through with it.
There have not been many cases where these issues have arisen, but with fertility treatments increasingly common, there are sure to be more in the future.