Advances in assisted reproductive technology have made it possible for people who were previously unable to have children to start families using in-vitro fertilization (IVF). The process, however, often results in the formation of more embryos than is needed or wanted. While this usually isn't a problem for couples while they are married, it becomes a serious issue when spouses separate. If you and your spouse are divorcing, here's what you need to know about assigning custody of leftover embryos.
The Law and Frozen Embryos
Unfortunately for many couples, the laws have been slow to address the various issues associated with producing children using assisted reproductive technology. For instance, the courts are still struggling with how to define frozen embryos. In some areas, frozen embryos are treated like property and judges have made rulings based on the rights of ownership. In other areas, the embryos are placed in the same category as living children and those courts have made decisions with that idea in mind.
For the most part, though, frozen embryos exist in a sort of limbo where they don't have the rights of living humans but they're not considered property either. Therefore, the court decisions resolving issues of ownership after divorce are all over the place.
A significant example of this type of confusion in action involves the case of a Tennessee couple who were attempting to work out their conflicting interests regarding their frozen embryos. The first court to hear their case treated the embryos as though they had the same rights as living children and gave custody of them to the woman because it was in the "best interests" of the embryos to give them a shot a life.
However, the Tennessee appeals court determined the embryos were joint marital property and ruled the woman could not implant them without the man's consent. This was partially influenced by the idea that allowing the woman to have unilateral control over the embryos would cause the man to become a father against his will and obligate him to the associated responsibilities.
The case was appealed again, and the third court placed the embryos in an alternative status that elevated them above mere property but also recognized their status as only potential (not actual) human life. The court eventually ruled in the man's favor.
The issues of ownership and reproductive rights get even more complex when there are third parties involved such as in the case of donor eggs or sperm from unrelated persons. If the couple obtained eggs from another woman, for example, that woman may legally have a say in what happens to the embryos.
Dealing with the Future
The time to talk about what to do with frozen embryos in case of divorce is prior to undergoing any type of assistive reproductive procedure. Most companies that specialize in these treatments require couples to sign contracts outlining what should be done with the embryos should the couple separate. Even if the company you select doesn't, it's a good idea to draw up a post-marital agreement that addresses the issue.
Before you agree to anything, though, you should carefully consider all aspects such as:
If you don't have an agreement in place when you and your spouse begin contemplating divorce, then that should be the first thing on your agenda to work out. The subject of what to do with the frozen embryos can be emotionally challenging, so it's probably best to do so with the help of a neutral third party such a divorce attorney. For more information about laws related to the assigning custody of frozen embryos in your state or assistance with working out this difficult issue with your ex-spouse, contact a divorce attorney for help.
Share27 February 2015
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