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What happens to frozen embryos in a divorce?

DiPietro Law Group, PLLC

Reproductive experts around the U.S. estimate that hundreds of thousands of embryos are being stored in fertility clinics around the country, according to a recent article in Parenting magazine. Modern science has given hope to people struggling to naturally conceive by taking sperm and an egg and producing embryos that ultimately mean more chances for children.

But what happens when a couple with embryos cryogenically frozen in a lab decide to part ways?

The first U.S. case to consider frozen embryos in a divorce was nearly 20 years ago, in Davis v. Davis in Tennessee, Divorce Source reports. The wife had wanted to donate the frozen embryos to a childless couple, but the husband wanted them destroyed. The trial court ruled that the embryos are essentially children and awarded them to the wife, according to the website. The Tennessee Supreme Court held, however, that embryos are neither property nor children, but instead a unique entity with aspects of both categories.

The higher court ultimately ruled in favor of the husband, establishing a framework for resolving similar disputes across the country. In the Davis case, the court held that since the husband’s decision not to have children was constitutionally protected, the embryos should be destroyed.

Nearly 20 years later, courts across the country appear to follow the Davis ruling. A San Francisco judge ruled in November 2015 that frozen embryos a woman wanted to use to have children over her ex-husband’s protests would be destroyed. The husband had claimed that the marriage and subsequent divorce had been bitter at best, and because of that he didn’t want to be tied to his ex-wife by having a child with her. The woman, however, had said she feared the embryos were her only chance at having a child, since she had battled breast cancer and was 46 years old.

The couple had signed a form provided by their fertility clinic agreeing that the embryos would be destroyed if they ever divorced. The San Francisco judge ruled that the consent agreement was a binding contract. The judge also decided that the woman might still have a child on her own, and that her effort to have children with her ex-husband might be an attempt to secure child support from him.

The experienced family law attorneys at the DiPietro Family Law Group have decades of experience handling all types of family law matters and are here to help you.

Contact one of the DiPietro family law attorneys today to schedule a consultation with a caring professional at (888) 530-4374, or visit us online.

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