Divorcing when you have children can be complicated regardless of whether your separation is amicable or contentious. While going through the divorce process, you and your spouse will come up with child-sharing agreements and schedules for child support. All states implement guidelines to help ensure that the children’s needs are met by both parents. However, questions have begun to arise about what happens if you are divorcing and your child has not yet been born? Specifically, what happens to embryos created during in-vitro fertilization that are cryogenically stored?
When beginning the IVF process, most IVF storage facilities will have prospective parents sign consent agreements, giving authorization to preserve embryos created during the fertility process. Most of the time, these documents only briefly touch on what will happen to frozen embryos in the event of a couple’s separation. Choices for most couples include: continuing to freeze the embryos, donating the embryos for adoption, donating the embryos to medical research, or destroying the embryos.
In-vitro fertilization can be an exciting time for couples anxious to become parents, and they may give little thought to outcomes such as divorce as they are eager to welcome their new baby.
Unlike disputes regarding child custody, little legal protection exists for divorcing couples looking to resolve what will happen to their frozen embryos. Many couples are left with multiple issues to deal with all while working in uncharted legal waters. There is even controversy as to whether agreements put in place by IVF storage facilities are legally enforceable.
Under the law, frozen embryos are considered personal property and belong to both parents. Unlike most forms of personal property however, owning frozen embryos can affect one spouse to the detriment of the other if their parenting goals no longer align. In past cases courts have generally taken the position that one spouse cannot force the other spouse to become a parent against their will. Cases regarding IVF embryos have lifelong financial and emotional issues at stake, and therefore most courts remain reluctant to impose parenthood on a party who has not given their consent. However, courts have begun to examine cases where extenuating conditions demonstrate that by destroying cryogenically stored embryos, one of the parents would be prevented from ever having a biological child.
Disputes over stored embryos can take years to resolve. Before undergoing the IVF process, couples should discuss in detail what will become of their embryos in the event of a divorce down the road. Nobody plans to break up, but having legal documents put in to place in the event of a separation can help prevent heartache for both parties down the road.
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Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
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