Fertility science opens new frontier in divorce

| Apr 22, 2021 | Firm News |

The two most important and potentially difficult aspects of divorce are property division and child custody. Each of these subjects has its own issues and complications, and each is almost entirely distinct from the other.

In recent, the increasing popularity of fertility treatments has created a new frontier in divorce law — one that blurs the lines between the two subjects. Now, many divorcing couples must ask not only “Who gets to keep the house?” but also “Who gets to keep the frozen embryos?

Eggs and embryos

The issue arises in cases where a married couple has chosen to preserve reproductive material. For instance, many couples who are having trouble conceiving a child on their own choose to preserve embryos for possible implantation. Because the process often doesn’t work the first time, they freeze multiple embryos for possible later use. In some cases, one of the spouses is unable to conceive, and so the embryo has genetic material from one spouse and from a donor. Using a different process, some women choose to freeze their eggs, hoping to fertilize them later, when they are ready to raise a child.

All these practices can be valuable to people who wish to start a family, and they have led to happy results for tens of thousands of Americans. They are becoming increasingly common as the technology improves, and are often covered by health insurance plans.

Dividing property

The legal problems arise when a married couple chooses to divorce while it still has frozen embryos or other reproductive material.

Theoretically, a woman could be implanted with an embryo conceived using her eggs and her ex-husband’s genetic material. Alternatively, a surrogate mother could be implanted using other parties’ genetic material and end up bearing the child of a couple who divorced years earlier. One of these ex-spouses may not want to become a parent anymore — or at least, not if the other parent is going to be their ex.

The legal and ethical questions in these cases are staggeringly complicated. The best way to answer them is by having the couple decide the issues in advance with a prenuptial agreement or an agreement made at the time they freeze the genetic material. Otherwise, the parties will have a difficult dispute with little in the way of legal precedent to guide them. Either way, the help of an experienced lawyer is essential.

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