"Clear" or "well-settled" are not words that typically arise when talking about assisted reproduction or surrogacy laws, and this can leave some families using these technologies in difficult positions. Recently, there have been an increasing number of disputed legal issues regarding embryo disposition in divorce which have been both testing and setting the legal precedent for court cases of this type.
In one California case - Lee vs. Findley - a couple who created embryos during their marriage for the purpose of having children within their marriage are getting divorced. They are now in a dispute about possession and use of their frozen embryo(s). In this case, if Lee wins, Findley could become a parent against his wishes; if Findley prevails, Lee will probably never have a child that is genetically related to her. It is a complicated battle fraught with intense emotional overtones.
This is not the only case dealing with the challenges of assisted reproduction or surrogacy in America. Issues concerning legality and morality of these practices have always existed since these practices started back in the 1980s. Disposition of stored embryos in divorce is complicated by the fact that each state has, or is developing, its own individual law governing the issue; family law and all its aspects are not governed by uniform federal law but by each individual state's law.
There are many assisted reproduction and surrogacy cases happening in every state every year, and there is often a difference as to how courts deal with each case from state to state. Depending on in which state you live, a frozen embryo may be treated as a person, mere property, or deemed to be neither a person nor property, but something in between that is entitled to a "special respect" (the prevailing view).
The issue of embryo disposition is also complicated by the fact that people don't view frozen embryos like they do frozen eggs or sperm. While some see them primarily as a future reproductive option or possibility, others perceive and treat their frozen embryos as persons - their already-existing frozen children.
In the majority of cases, the courts have ruled in a way that prevents one parent from becoming a parent after the divorce against his or her will. However, the arguments and rational underlying the various state court decisions vary widely and are often inconsistent. The trend now is that courts are considering whether the partner who wants to use the stored embryos has any other way of genetically reproducing; if not, the courts are starting to allow the reproductively-compromised party to use the embryo.
What hasn't yet been determined is the ultimate parentage of any such resulting children and whether the objecting spouse (1) is a legal parent, and (2) has to pay child support for a child born after the divorce. Can a sympathetic spouse agree to let his ex-spouse use his or her genetic embryo to have a child after the divorce, agree not to become a legal parent, and not pay child support? We just don't know yet, and this often frequently precludes such cooperative agreements between divorcing spouses over the use and disposition of stored embryos. This is just one example that highlights the disparity between medical advances in the nature and issues relating to reproduction and the painfully out-of-date laws that govern parentage and divorce.
There are many reasons to make sure that families talk to an attorney during the planning stages to help prevent these problems from arising. Lawyers and judges are cautious when it comes to embryos and conception in part because of the emotionally-charged nature of the situation. Any statement of intent at the time of creating the embryos and long before a divorce, specifically including clinic consent forms for IVF, may be interpreted by a court as the parties' binding agreement for all purposes and all time. Such agreements and consent forms s hould not be signed without adequate discussion with and advice from an experienced fertility attorney.