Frozen Embryos Following a Divorce

Posted by Steven D. Eversole | Sep 15, 2015 | 0 Comments

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These days, it is fairly common for a couple to go to a fertility clinic to create a series of fertile embryos, so they can be frozen and stored for future use. A recent article from NPR discusses this situation and how it can create problems following a divorce.

The couple featured in the article went to a fertility clinic soon after their wedding. The wife had been recently diagnosed with breast cancer. She was worried that her chemotherapy and radiation might leave her unable to conceive a child if she was able to survive the cancer.

Years later, now that her cancer has successfully been in remission, she wishes to have a child with one of the frozen embryos. The reason this is such a problem is because the couple is no longer married, and her now ex-husband does not with to father a child with his ex-wife. As our Birmingham divorce attorneys understand, this very issue is being litigated in courts across the country. As of now, there does not seem to be a consensus on who, if anyone, gets possession of frozen embryos after a divorce.

In the case of the couple featured in the article, it should be an easy decision, as both parties signed consent forms at the fertility clinic where the embryos were created that said that, in the event of a divorce, all frozen embryos would be destroyed. This is actually a fairly standard form signed by most couples who go to fertility clinics.

However this form does not appear to be controlling in their case, which is now before a California court. Legal scholars look to recent case from Massachusetts, in which seven contracts were signed saying the female spouse would get possession of all embryos. The reason there were seven contracts was because there were seven embryos, and that clinic created a different form for each embryo. While it would seem logical to give the embryos to the female spouse following a divorce, as the contracts dictated, the court said this would be contrary to public policy, in that it would be unjust to force someone to become a parent against his or her will.

This decision to side with the party who does not wish to become a parent tends to carry more weight than siding with the party who wants to have a child without their former spouse's consent. However, as the woman in the article argues, she is now infertile and does not have any other viable option to have a child. This frozen embryo is her only chance to have a biological child, and she created the embryo specifically for this scenario.

Her attorney is also arguing that consent to destroy the embryos was not a legally binding contract and is not enforceable in court. The fertility clinic is obviously taking the position that the contract is binding and is supporting the former husband in his legal action.

Additional Resources:

After A Divorce, What Happens To A Couple's Frozen Embryos?, August 22, 2015, NPR, by Jennifer Ludden

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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