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Custody Rights over Frozen Embryos

InVitro

Having a child is a wonderful experience that many couples strive to achieve. For a variety of reasons, a couple may seek assistance with reproduction, including the creation and freezing of embryos for use at a future date. This procedure costs a lot of money, time, and emotions, but if successful, the sacrifice is viewed as a small price to pay. Unfortunately, legal complications over the fate of frozen embryo custody can arise if they are not used and the couple disagrees about whether to dispose of them, usually during the course of divorce proceedings. Because embryos are not viable humans, they do not have the same legal recognition or rights a person receives upon birth, and how courts evaluate ownership and/or possession of these specimens also differs. Reproductive technology, like all areas of science, is developing all the time, so the capabilities to help couples and individuals have a child is changing over time. Further, the number of individuals involved in the process is also expanding, i.e., egg and sperm donors, which can present additional complications in the event of a dispute. A discussion of how courts assess the rights of each spouse or partner to use or dispose of frozen embryos will follow below.

Basic Rule

Most facilities that retain and/or create frozen embryos require the couple to enter into a contract that includes terms related to the ultimate fate of the embryos if not implanted in a woman. The options range from freezing them indefinitely, donating them to science for research, donating them to another couple/individual, or disposing of them entirely. The provisions of the contract should control how the embryos are handled in a divorce case, but generally speaking, courts view frozen embryos as marital property, which is divided according to what is most fair. Thus, judges will be tasked with balancing the interests of both parties to determine which spouse should receive rights to the embryos. Courts tend to rule in favor of the spouse who does not wish to be a parent, as this is a responsibility that should be chosen if possible, but past court decisions have gone in favor of the spouse wishing to use the embryos, so there is no clear line as to how a judge will rule. The facts of each case will control the outcome, so working with an experienced family law attorney is important to securing a fair result.

Support

The larger implications of allowing one spouse to use frozen embryos over the objection of the other spouse are quite significant. Typically, married men and those established as a child’s legal father through a paternity action or acknowledgement are required by law to financially support the child until adulthood. For an ex-spouse who lost a challenge to destroy or otherwise dispose of an embryo, this situation appears unfair, and when this issue as associated with cases in the past, courts have not specifically ruled on the spouse’s obligation to support the child in these circumstances. Thus, a lot of certainty over support obligations exist, and to avoid complicated legal battles, prenuptial agreements and/or specific agreements about the use of genetic material should be drafted and reviewed by an attorney to ensure the rights and obligations of both parties are clear.

Seek Legal Advice

Creating a child is an amazing feat, but when reproduction is assisted, the long-term consequences become more complex. The Delaware County family legal team at the office of Barbara Flum Stein & Associates handles all areas of family law, and is available to review the facts of your case. Contact the attorneys today at (610) 565-6100 to schedule a consultation.

Resource:

theitem.com/stories/in-limbo-leftover-embryos-challenge-clinics-couples,321248

https://www.bfsteinlaw.com/sole-physical-custody-vs-joint-physical-custody-which-is-better-for-your-children/

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