Embryo Custody Legal Issues

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 What Happens to the Embryos After Divorce?

Technological advances often create novel legal issues. After struggling with infertility, embryos are made and can be frozen when a couple chooses to make use of in-vitro fertilization (IVF) or other assisted reproductive technologies (ART).

The process involves creating a number of embryos. However, implantation of an embryo in the woman’s uterus, or sometimes the uterus of a surrogate, is attempted for only a small percentage of them.

The spouses may be successful in having a baby while several embryos remain unused and in a frozen state.

If an implantation attempt is successful, couples must decide what to do with their remaining embryos. They can implant more of the embryos, but they may feel that their family size is what they desire. In that case, they may choose to discard the embryos, donate them to another couple struggling to conceive, or donate them for use in research. Until a decision is made, these frozen embryos may sit in storage, often for a fee, until the couple makes their decision.

However, frozen embryos can give rise to unexpected child custody issues when the couple that owns them divorces. The dispute arises when a couple uses IVF in order to have a child and then gets divorced before aloof the embryos have been implanted. At that point, one spouse may want to follow through with an additional pregnancy, while the other spouse may prefer not to have a pregnancy in light of the fact that the couple is going through a divorce.

Of course, if a child is born, as both would be the biological parents of the child, both spouses are legally obligated to support the child, even if they are divorced. So, how should this embryo custody battle be resolved?

Before a couple starts the procedure of assisted reproductive technology, their provider generally requires them to sign a consent and agreement form. This form states clearly what the fertility clinic should do with the stored frozen embryos in the event the couple separates or divorces.

The state of California had its first case involving this issue in 2015. In the initial California case, the court ruled that a wife could not use frozen embryos after she had divorced her ex-husband. The judge found that the consent and agreement form that the couple had signed was an enforceable contract under California law. Other embryo custody cases in New York, New Jersey, and Tennessee have been decided similarly.

There are no state or federal statutes that give judges clear instructions on how to rule in these embryo dispute cases. Child custody in a divorce is an issue that is litigated in state courts and decided according to state law. The custody of embryos is the same, i.e., an issue for state law in state courts. Various courts in different states have come up with three different approaches to resolving the issue.

1) The Contractual Approach

One approach used by courts is the “contractual approach.” In many instances, when a couple engages in embryo fertilization, they sign an agreement before the procedure is done. The agreement specifies how the embryos should be used, donated, or disposed of in the event of a divorce. Under the contractual approach, a court upholds any agreement made by the parties and enforces it if one of the parties challenges the provisions of the agreement.

Some courts favor this approach because it gives the parties the authority to make decisions about their embryos. Many judges feel that it is inappropriate for a court to impose its choice and meddle in decisions that are so personal in nature.

Further, upholding these agreements gives couples who make use of embryo fertilization an incentive to enter into agreements ahead of time to help avoid future conflict. One limitation of the contractual approach is the fact that not all parties may make an agreement in advance of making use of the technology.

In addition, human nature being what it is, when a situation arises in real life, they may feel differently about their options than they previously did when they signed an agreement.

Many state courts are adopting the “contractual” approach for deciding the complex problems presented by the issues involved in assisted reproductive technology. Under this common approach, one spouse might be awarded the embryos because the parties had an agreement expressed on a form on which the spouses had checked a box at the fertility clinic.

Some courts demonstrate a preference for honoring agreements between the parties in disputes involving embryos in a divorce.

In addition, some courts may hope to encourage couples to give careful consideration to their wishes and preferences about the issues they may face, which are very personal in nature.

Finally, as a matter of public policy, it is arguably helpful for couples to have explicit agreements because they help to avoid costly lawsuits.

Courts in California, Illinois, New York, New Jersey, and Tennessee have all adopted the contractual approach in their rulings on the issue of ART agreements.

2) Mutual Consent Approach

Another approach used by some state courts is to require mutual consent from both parties before any ruling is made. Here, even if the parties made a prearranged agreement about the disposition of their embryos, the court does not automatically rule in favor of whatever the agreement says.

Rather, the court insists that the parties agree between themselves about how the embryos should be used, donated, or disposed of. If the parties cannot reach a mutually acceptable agreement, the court is likely to order that the embryos just remain frozen until the parties can agree on a resolution of the issue.

3) The Balancing Approach

Some courts use a so-called balancing approach to determine what it believes is the appropriate disposition of frozen embryos created through assisted reproductive technology. Say the parties are not able to agree on a mutually acceptable option. In that case, courts that apply the balancing approach weigh the interests and circumstances of both parties in an effort to reach a fair outcome.

Courts look at a variety of factors, including which outcomes each spouse prefers and whether a spouse wishing to use the embryos would be able to have children without the use of an ART embryo.

In weighing these factors, courts give preference to certain interests over others. For example, a court generally gives more weight to the fact that a party does not wish to become a parent versus the other party’s wish to donate the embryos. However, courts may give the most weight to a party whose last chance at parenthood lies with the embryo.

Seeking Legal Help

If you are involved in a child custody dispute that involves frozen embryos, you want to consult an experienced child custody lawyer. LegalMatch.com can connect you with a lawyer who knows which of the three different approaches is the one used by the courts in your state and what the implications are for your situation.

Or, if you and your spouse are thinking of using assisted reproductive technology in order to expand your family, you should consult a child custody lawyer. Again, your lawyer can tell you about your rights and responsibilities and how you can avoid costly disputes in the future. Your lawyer can review any form that your healthcare provider has asked you to sign and can help you reach agreements that are mutually acceptable to both spouses.


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