When a couple decides to end their marriage, the ensuing divorce must determine what happens to the couple’s accumulated assets and debts as well as who will have primary custody of any minor children of the marriage. The division of marital property and custody of minor children appear to be two separate, and unrelated, issues, right? Historically, they have been; however, with major advances in the area of assisted reproductive technologies those two seemingly unrelated issues have become intertwined as courts have wrestled with the question: Should frozen embryos be treated as property or as children in a divorce? Either way, who gets custody of frozen embryos in a divorce? As a Murfreesboro divorce attorney explains, the answers are neither simple nor clear.
Hope for Infertility
Not all that long ago, an infertile couple had very few recourses. If doctors were unable to find a physical reason for infertility that could be easily addressed, the couple’s only real option was adoption. Recent innovations in reproductive technology, however, have helped many couples and individuals achieve pregnancies that may have been impossible even a few years ago. In vitro fertilization now allows a woman’s eggs to be removed from her body and joined with a man’s sperm in a laboratory. Once fertilization occurs, the embryo can be transferred into the woman with the hope that it will implant and grow, ending in the miracle of birth. Embryos that are not immediately implanted, however, are frozen to be used in successive attempts at implantation. It is these frozen embryos that can become problematic should the couple decide to divorce.
Did You Sign a Contract?
Most couples are required to sign lengthy contracts when they agree to pursue in vitro fertilization (IVF), or any other type of assisted reproductive technology. Furthermore, most of these contracts address what shall happen to the frozen embryos if they are not implanted within a reasonable period of time. If you and your spouse chose to pursue IVF, the fate of any unused frozen embryos should have been discussed with you at length before moving forward. Because IVF is an emotionally charged subject matter, you may not remember all the terms of the contract you signed. Pull out the contract and read through it carefully to see if the contract itself dictates what will happen to any frozen embryos. If the contract does address unused embryos, a divorce court will honor the terms of the contract absent a very compelling legal reason not to do so.
What If the Contract Isn’t Controlling?
If the contract you signed is vague or fails to address the issue of unused, frozen embryos, or if for some reason there is no contract, it falls to the court to decide how to handle the embryos. Courts across the country have been wrestling with this issue for some time now. Unfortunately, a definitive, unanimous consensus among the lower courts has yet to be reached and the issue has yet to be heard by the nation’s highest court. Most courts treat embryos as property, not as children. Nonetheless, courts have been forced to consider a man’s right to prevent becoming a father versus a woman’s right to become a mother. When donor eggs or sperm are used, it muddies the waters even more.
A recent case from Colorado has raised Constitutional issues as well. The Rooks married in 2002 and employed IVF using Mandy’s eggs and Drake’s sperm to have three children. When they decided to divorce in 2014, six of the embryos created by that process remained frozen in a Denver clinic. Drake did not want more children and wanted the embryos destroyed. Mandy wanted them preserved, hoping for a larger family and believing the embryos were her only chance at future pregnancy. But the contract they signed when they created the embryos left it up to courts to decide who should get the embryos if the marriage dissolved. The Constitutional issue is clear: Does the right to procreate trump the right not to? Although the lower courts sided with the husband, the Colorado Supreme Court heard arguments in the case this past January. The decision of that state’s highest court, which has yet to be handed down, could have a significant impact on similar cases making their way through lower courts across the nation.
Contact a Murfreesboro Divorce Attorney
If you are contemplating divorce and you foresee the fate of frozen embryos as a contested issue in your divorce, it is imperative that you consult with an experienced Tennessee divorce attorney at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.
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