Divorce is already contentious. In most cases, whether the split is amicable or highly contentious, the parties have to grapple with issues of property division, spousal support, parenting plans, child support and attorney’s fees. But with the recent advances in technology there is a new type of potential battle – this is the fight over cryogenically frozen embryos that the couple had stored for having future children together.
To be clear, what I am referring are embryos – meaning eggs that have been fertilized with the sperm through in vitro fertilization (IVF) and then stored for the future.
There are several reasons why couples may have chosen this – one is that maybe they attempted to have children by using some of the embryos but not all of them. Perhaps they even had another child or children this way but wanted to preserve the option to have more. It could have been because the wife wanted to have a career first but had concerns about aging eggs and the ramifications of that so wanted to be sure her younger, more healthy eggs would be preserved. Or maybe the couple wanted to wait to have children for financial reasons, so wanted to have the option to have children later.
Whatever the reason, if the parties decided to divorce, then they will have to decide what to do with the frozen embryos too. The consents that are executed by the parents really only generally address the storage of the embryos themselves and not what would happen upon divorce, or even death of either party.
The choices really are pretty limited. They are one party keeps them, they get donated to medical research, or they are ordered to be destroyed.
One of the battles that courts have seen over this issue, is a moral one. Is the embryo considered life, or a child. Many would argue that it does. States have yet to step up and make that determination. Another concern is whether a court has the right to order that the embryos be awarded to one party or the other – then what happens if that party chooses to use them and a child is born. Would the other parent now be on the hook for child support?
What is clear is that divorce courts do not see dealing with frozen embryos as a custody battle. They are considered personal property, which must be dealt with like the house silverware or the living room chair. However, while this is the way it has been handled, it is clearly different. The living room chair won’t morph into a child, and all that comes with having a child. Does the court, or anyone for that matter, have the right to force the other person to become a parent? Is it forced if they consented to the IVF in the first place? And what about those who may have no other options for having a child biologically? Put another way, some argue that if the embryos are destroyed that their possibility of ever having their own biological child may forever be foreclosed.
Of course, it is easy to say that before moving forward with IVF, these conversations should take place and decisions made. But the hard truth is that even if couples came to an agreement ahead of time, and memorialized that agreement into a writing, that agreement may not even be enforceable.
So while there is no easy answer, most couples do choose the path of either donating the embryos to medical research or allowing them to be destroyed. That said, I don’t think we’ve even started to scratch the surface of this area of the law.
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