Technological advances often create novel legal issues. For example, frozen embryos can create unexpected child custody issues when a couple divorces.

The dispute arises when a couple uses in-vitro fertilization to assist with impregnation, but then gets divorced prior to implanting the embryos. At that point, one spouse may want to follow through with the procedure while the other spouse may prefer to have the embryos terminated.

Who wins the frozen egg custody battle? There aren’t any federal statutes on the issue yet, but various courts in different states have come up with three separate approaches to resolving the issue.

1) The Contractual Approach

One approach used by courts is the "contractual approach." In many instances, when a couple undergoes embryo fertilization, they will sign an agreement ahead of time as to how the embryo should be used, donated, or disposed of in the event of a divorce. Under the contractual approach, courts will uphold any agreements made by the parties as binding.

Courts like this approach because it leaves the decision in the hands of the parties involved. Many judges feel that it is inappropriate to step-in and meddle with such a personal decision. Further, upholding these agreements incentivizes couples undergoing embryo fertilization to formalize agreements ahead of time to help avoid future conflict.

Note that the contract approach may not even be applicable if the parties didn’t make any agreements ahead of time.

2) Mutual Consent Approach

Another approach used by other courts is to require mutual consent from both parties before any disposition is reached. Here, even if the parties made a pre-arranged agreement about the embryo disposition, the court will not hold these agreements as binding. Rather, the court will insist the parties both agree as to how to use, donate, or dispose of the embryos. If the parties can’t reach an agreement, the court is likely to order the embryos just remain frozen to leave the opportunity open for future agreements.

3) The Balancing Approach

Some courts use a balancing approach to determine the appropriate disposition of the embryos. If the parties cannot reach an agreement, courts balance the interests and circumstances of both parties in effort reach a fair outcome.

Here, courts will look to a variety of factors, including which disposition each spouse prefers and whether a spouse wishing to use the embryos will be able to have children without the use of the embryo.

In weighing these factors, courts will give preference to some interests over others. For example, a court will generally give preference to a party who does not wish to become a parent over a party who wishes to give the embryo up for donation. However, courts may give more weight to a party whose last chance at parenthood lies with the embryo.

Seeking Legal Help

Issues involving embryo custody are highly complicated because this is such a new area of law. In order to resolve an embryo custody dispute, you should consult and experienced child custody lawyer.