Kajko, Weisman & Colasanti, LLP

Divorce and the frozen embryo conundrum

Fifty or more years ago, couples who were unable to conceive on their own naturally had few options. In most cases, when a husband or wife was diagnosed as having a fertility problem, the couple could either chose to adopt or simply resign to the fact that they weren't meant to be parents. Today, couples who experience fertility issues have a myriad of options.

One popular option is to fertilize a woman's egg with a man's sperm to create an embryo which can then be frozen and used in future fertility treatments like in vitro fertilization. As more U.S. men and women are delaying marriage until later in life, more are likely to experience fertility problems that will warrant the necessity of intervention procedures like in vitro.

There are, however, many legal and ethical questions that present when a married couple who creates and freezes embryos later decides to divorce prior to the embryos being used. One case out of San Francisco highlights the many complex issues that courts across the U.S. are increasingly being forced to address and decide.

In this case, shortly after marrying the couple decided to freeze five embryos to account for possible fertility issues related to the woman's breast cancer diagnosis and related treatments. The couple later decided to divorce prior to using any of the frozen embryos.

Today, the now 46-year-old woman wants to use the embryos to have a baby. The man, however, doesn't sanction the use of the embryos. Both parties previously signed an agreement at the fertility clinic which stated that, should they divorce, the embryos would be destroyed. However, the woman’s attorney argues that the agreement is not a legally binding contract and, given the woman's advanced age, a judge is likely to take the fact that she has no chance of conceiving a child of her own with a new partner into consideration.

Cases involving couples who undergo treatments to produce embryos and then divorce or split up are increasing in number and complexity. While, to date, the courts have tended to side with the party who is in opposition to the embryos being used, this case is different due to the woman's age and lack of future fertility options. We'll continue to provide updates when a decision is made in this case.

Source: NPR.org, "After A Divorce, What Happens To A Couple's Frozen Embryos?," Jennifer Ludden, Aug. 22, 2015

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