Getting What Is Rightfully Yours

Who Gets Custody Of Frozen Embryos In A Divorce?

4 April 2017

Estelle Mathieu

In recent years, family courts have been given the difficult task of deciding what happens to frozen embryos when divorcing couples cannot agree on their fate. Whereas some courts have ruled that one of the spouses could have custody of the embryos, some have ruled that they be destroyed. If you and your spouse are divorcing and have frozen embryos, here is what you need to know.  

Why Not Defer to the Contract?

Fertility clinics routinely require clients to sign a contract that states what the fate of the embryos will be in certain situations. Although the courts have the option of simply deferring to the contract and enforcing the agreement made by the couple at the time, there are issues that could lead the court to discard the agreement.  

For instance, a judge might feel that by giving the embryos to one spouse, the other spouse is being forced into a position of becoming a parent even though he or she might feel differently about doing so. In essence, his or her familial and parental rights would be violated.  

Another possible issue deals with the contract itself. The contracts used by fertility clinics tend to be boilerplate and fail to take into account the various situations that can occur after the embryos are frozen. The contracts can also have language that is unclear to both parties, which could lead to confusion over who has the legal rights to the embryos. 

What Can You Do?

Although it might seem like a longshot, your best bet for settling the matter is to attempt to work out an arrangement with your spouse. For instance, if you are the spouse who does not want children, you could agree to the use of the embryos if your parental rights are terminated. Terminating your rights mean you do not have to provide financial, emotional, or physical support to the child.  

There are limits to the type of arrangement you can reach to your spouse. If your agreement is viewed by the court as unethical or illegal, the court could refuse to enforce the arrangement. Therefore, it is best to work with your attorneys to negotiate an agreement and to determine if the agreement is legal. 

If you and your spouse are not able to reach an agreement, work with your attorney to prepare for court. Due to the differing decisions that have been reached in similar cases, determining what the outcome could be is impossible. However, your attorney, such as from Hackworth Law, can turn to your state's laws and help you build a strategy for getting the outcome desired. 

Share

Search