Divorce & Frozen Embryos

Divorce and Frozen Embryos – A New Struggle

As  much as many people wish it otherwise, sometimes marriages don’t last forever. Divorce is never easy, and sometimes circumstances can make it much harder. One that immediately springs to mind is children – who gets custody? How is custody split? Will child support be paid?

However, with the advent of modern technology, there are new ways that divorce can be complicated. For example: if a couple has frozen embryos stored for future use when they decide to get divorced, what should happen to those embryos? This problem was unimaginable fifty years ago, but today we have legal precedents being set on the topic regularly. 

If you are in a situation where you’re concerned about divorce or how to ethically handle the custody frozen embryos, here are some things to consider.

Current Precedents

There have been several cases in the past few decades regarding the custody of embryos in a divorce. For example, in one case, a woman and her then-husband went through the process of creating and freezing several embryos through in vitro fertilization after she found out her impending cancer treatment would likely render her infertile. However, later she and her husband separated, and the man said he no longer wanted any children. In this case, the judge decided that the embryos should be donated to a local fertility clinic. The woman, now unable to bear further eggs due to her chemotherapy, was devastated.

Similarly, in a case in Washington state, two judges awarded custody of the frozen embryos to the parent who did not want to create children. While both the wife and the egg donor wanted the embryos to be implanted and brought to birth, the father did not wish to bear children and instead wanted them sent for an out-of-state adoption. The first court ruled in his favor while arguing that a guaranteed two-parent household was better for the potential children. The wife and egg donor appealed, and the second court again ruled in the father’s favor, stating that he cannot be forced to become a father again against his will.

There is also a trend currently in states such as Arizona and New York to introduce legislation mandating contracts at the beginning of in vitro fertilization designating what both parents agree to do should they divorce while the embryos are still extant. However, these laws are new and only just beginning to catch up to the current state of technology.

Complications and Ethical Concerns

Today, consent is a huge matter of discussion. It’s fair to say that consent is essential, especially when it comes to the birth of a child. However, in the discussion surrounding frozen embryos, there are multiple times during which consent needs to be taken into consideration. Presumably both parties consented to the creation of the embryos in the first place, but after the end of the relationship, one party or the other may no longer consent to their use. Similarly, in many cases more embryos are created than are needed. One parent may have consented to the birth of a single child, but not an additional two or three.

Another tricky matter is what to do with embryos that the courts have decided are not to be used by either parent. Options that have been suggested or ruled included the destruction of the embryos, an indefinite ban from unfreezing them or donating them to a fertility clinic. Any of these scenarios have complex ethical questions surrounding them. One parent may be vehemently against the destruction of embryos due to religious reasons, while the other might want them destroyed to avoid being tied to their ex-spouse by a child they do not wish to have. 

There is no perfect answer to questions like these, as every case is different. 

What Can You Do?

If you are concerned about the custody of your frozen embryos after a divorce, the first thing you should do is make sure you have a good lawyer. Regardless of how you want your embryos handled, the case is probably going to be treading new ground for many people involved, and you need to ensure that your case is in good legal hands.

A qualified lawyer like those at BBR attorneys can help you by outlining your rights, working with any contracts that exist concerning your frozen embryos, and ensuring that your case is judged as fairly as possible. They can also work with opposing counsel to make sure that no pertinent information has been left out, help you work with your ex-spouse’s needs and wants, and counsel you on how to give your case the best shot of success. 

Divorce is never a walk in the park, and adding elements like in vitro fertilization to the case only makes it more complicated. If you are facing a divorce in the San Antonio area, contact BBR attorneys. Regardless of what you would like as the final result, it is going to be much easier on you if you have a qualified lawyer in your corner.