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West Palm Beach Divorce Attorney > Blog > Divorce > Which Spouse Gets to Keep the Frozen Embryos After Divorce?

Which Spouse Gets to Keep the Frozen Embryos After Divorce?


Couples who are considering having children together often solicit the aid of fertility clinics that can help the couples get pregnant even when there are medical or genetic issues preventing conception. These couples may go to the clinic and have embryos created later for implantation. Regardless of whether or not the couple has a child, the embryos remain in the care of the fertility clinic during the divorce. But who should get custody?

Navigating This Problem 

A Canadian couple was involved in just such a dispute over an embryo in 2018. The husband, who had paid for the procedure, wanted the embryo to be considered his property, fearing that his wife may implant the embryo in order to extract more child support from him. The husband wanted the embryo “given up for adoption”.

In response, the woman said that she would not be looking for child support for the embryo and believed that the couple’s only son deserved a sibling.

There are two issues that need to be clarified. The first is whether or not the embryo is considered “property” and, if it is considered property, then whose property is it?

U.S. Law and Embryos 

Even in the most conservative parts of the U.S., embryos do not have standing in court or rights under the law. A case involving this particular question made it to the Connecticut Supreme Court in 2016.

Typically, when couples have embryos created at a fertility clinic, they sign agreements as to what would happen if the couple’s marriage ends in divorce before the embryos can be implanted. In this particular case, the couple agreed to have the embryos destroyed if the couple divorced. However, the husband did an about-face on the issue, and during divorce proceedings, argued that the embryos should be kept viable if the couple ever got back together again or, failing that, if another couple wanted a child, the embryos should be adoptable.

A lower court ruled that the mother should get “custody” of the embryos, which would have allowed them to be destroyed. The father appealed the decision stating that the embryos were human beings. He lost. The Connecticut Supreme Court ruled that the embryos were “marital property” and that the contract signed by the couple in concert with their IVF clinic was legally binding.

IVF Contracts are Almost Always Enforceable 

There haven’t been any cases in which pre-embryos have been given the legal standing of persons for the purpose of enforcing contracts agreed to by both couples. If a couple agrees to destroy the embryos upon divorce, then that is precisely what happens to the embryos. If the couple has no such agreement in place, then the embryos can remain viable. That is how the law works in the U.S. and in Canada.

Talk to a West Palm Beach Divorce Attorney 

If you’re considering divorce, it’s a good time to discuss your options with a West Palm Beach divorce attorney who could help you begin making moves that preserve your interests for the future. Call Bruce S. Rosenwater & Associates today to learn more.




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