Embryo Custody Battles

What happens to frozen embryos after a couple splits up?

An Illinois court is determining whether a woman can have custody of and implant embryos over the objection of her ex-boyfriend, who provided the sperm that created the embryos. If the woman is successful, she will be permitted to get pregnant and presumably have a child who will be the genetic child of her ex-boyfriend, who maintains that he has a constitutional right not to pro-create against his will.

There are a number of cases pending throughout the nation that deal with the custody and disposition of frozen embryos after a couple has split. There are three competing approaches to how to view this question.

The first is the contractual approach, which states that the contractual agreements between the parties control the disposition. This approach has been used in New York, Oregon, Tennessee, Texas, and Washington, and appears to be the most popular approach.

The second is the mutual consent approach which states that nothing should be done with frozen embryos unless both parties agree. This approach was used in Iowa.

Finally, there is the balanced approach, where the court weighs the competing interests of both parties and determines which has a more compelling interest in the embryo disposition. This approach has been utilized in New Jersey, Pennsylvania, and Tennessee.  In this approach, courts have found that a genetic mother’s desire to be a mother was more important than her ex-partner’s desire not to be a father.

The question is a difficult one, however, and deals with the most fundamental of rights. Without clear contracts and evidence of mutual intent, a person could be forced to pro-create against his/her will or a person’s dream and ability to pro-create could be unilaterally destroyed by an ex-partner.

The question is even more complicated when the embryos are genetically related to only one partner (such as a lesbian couple that utilizes the eggs of one partner and the sperm of an anonymous donor), or even neither partner (such as when a couple adopts frozen embryos or creates then through the use of anonymous donor eggs and anonymous donor sperm). In these instances, it is even more unclear what a court would ultimately decide in terms of how to address the embryos after the couple has split if the parties cannot agree as to how they should be managed.  In these areas, it is conceivable that a court could award frozen embryos to one partner who will be allowed to use them to have a child with a new partner, against the will of the partner who participated in their creation.  This could have devastating consequences for all involved.

For these reasons, it is vitally important that you visit an experienced attorney to ensure that you have clear and appropriate legal documentation of both parties’ wishes both during the relationship and in the event of a split. Often, the consent forms that are signed at medical clinics are incomplete or insufficient to fully guide the court in how to direct the disposition of frozen embryos.