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Divorce and Frozen Embryos

With the advances in reproductive technology (such as in vitro fertilization, artificial insemination, and surrogacy), new and unique issues have arisen regarding custody and child support for children who are not conceived the "normal" way. Family law attorneys are seeing more and more of these cases as the number of couples using the various forms of reproductive assistance has grown. A recent case in California dealt with what happens to a couple's frozen embryos upon their divorce. California Judge Orders Frozen Embryos Destroyed, by Andy Newman, nytimes.com, November 18, 2015.

In that case, the parties did in vitro fertilization during their marriage, but signed an agreement that the embryos would be destroyed if they divorced. They ultimately did decide to end their marriage, but the wife, a 46-year-old cancer survivor, argued that the embryos would be her only chance to have biological children and, thus, did not want them destroyed. In the end, the Judge upheld the parties agreement and ordered the embryos destroyed, holding, "The policy best suited to ensuring that these disputes are resolved in a cleareyed manner - unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court - is to give effect to the intentions of the parties at the time of the decision at issue."

This can certainly turn into a heated, emotional issue and not all states have come to the same conclusion. While the majority of states hearing this issue have found in favor of the party who wanted the embryos destroyed, a small number have sided with the women who argued that the embryos were their only chance to have biological children. Currently there are no federal regulations governing this issue, nor has there been a ruling by any state Supreme Court or the United States Supreme Court providing guidance on this issue. Until that time, state courts will continue to decide on a case-by-case basis.

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Family Law (general)
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