In the event of a divorce or dissolution, couples find themselves dividing everything from property, to income, to custody of their children. But, the recent advances in science and technology have resulted in the addition of a novel point of contention between divorcing couples: frozen embryos. Many couples with reproductive problems freeze embryos, eggs or sperm for later use. Thus, the question becomes: how are embryos to be dealt with in the divorce or dissolution situation? Who controls the egg, sperm or fertilized embryo?
Courts around the country are being faced with such legal dilemmas. In most state courts, this is an issue of first impression. Absent an agreement between the couple, the court is left on its own to decide which donor should control the would-be baby in the aftermath of the divorce. The consequences and ramifications are endless. It is reasonable to assume that the eggs belong to the female and the sperm belongs to the male. But what is to happen to an embryo, a fertilized egg? Can a person donate the embryo to science, donate it to another person? Do both husband and wife need to agree? Can the woman use the embryo to have a baby after a divorce has taken place? Can she then file a paternity action against her ex-husband and get child support and custody? Can the ex-husband higher a surrogate female to carry his and his ex-wife’s embryo to full term and then sue the ex-wife for support and custody? Who should get custody; the biological mother, biological father or the female who carries and gives birth to the child?
Courts around the country are being asked to answer these questions. As such, it is important to understand the legal ramifications involved if careful attention is not paid to future possibilities.
Couples can enter into a contract that sets forth the parties’ voluntary intent as to how these issues are to be resolved in case of death of one spouse or a dissolution of marriage. Courts sometimes uphold these agreements and sometimes have not enforced them. But if there is no contract the court is left on its own to determine the fate of the embryos in the event that the couple separates. If you are in any of these situations, or have any further questions, contact Joshua I. Tourkow to discuss these legal issues.