A Legal Foundation For Your Family

Who gets frozen embryos in a divorce?

On Behalf of | Sep 6, 2018 | Assisted Reproduction

There are still so many grey areas when it comes to the laws surrounding assisted reproduction. At the same time, more couples are using procedures like in vitro fertilization to have their own families. Because of this, the courts are hearing more and more cases where there just aren’t any hard and fast rules – or real precedent – to look at.

Take for example a Supreme Court case in Colorado. In this case, a couple went through in vitro fertilization years prior – using their own sperm and eggs — and now have three children together. The husband and wife have since divorced, and the question at hand is what should happen to the frozen embryos. The husband does not want more children, while the wife still does.

This is certainly not the first type of embryo-custody case the courts have heard. The issue though is that judges in different states around the country have ruled in different ways. Sometimes the ruling has been to preserve the embryos for the parent who still wants to use them, while in others the courts have ruled to discard.

The big question at hand is actually one that is constitutional in matter. How do you balance one person’s right to not want to be a parent – in this case the ex-husband’s – with another person’s right to want to be a parent?

How the court will rule is tricky. While a lower court did already rule on appeal in favor of the husband – the embryos would be discarded – on appeal the wife’s attorney is bringing up the fact that this is all post-conception and that the husband had already agreed to use his sperm in this way, therefore, the embryos should be preserved for possible future use.

Vague contractual language

Years ago, the couple did sign a contract at the fertility clinic that basically says that the “court of law” would decide what would happen to the unused frozen embryos should the couple ever divorce.

One can assume that at the time – when the couple were in love and getting ready to start a family – the last thing on their mind was the possibility of divorce. One can assume this is why they did not have a more detailed contract in place, nor were they referred to an attorney to be advised about very real possible future legal issues.

As this case goes to show, one cannot underestimate the power of a solidly written and enforceable contract when it comes to assisted reproduction. While it may be uncomfortable to consult an attorney (preferably one for each party) and have these conversations with your partner, at the time you are creating embryos to have joint children look at it as just taking positive steps together to ensure that you and your family’s needs are being met in the future.