Divorce and In Vitro Fertilization: Who Owns an Embryo?

 Posted on July 28, 2015 in Divorce

Most custody cases deal with living children, but, in light of increased use of in vitro fertilization, a very important legal question is beginning to emerge: Who owns an embryo?

Legal Statutes Struggle to Keep Up with Rapidly Advancing Technology

Not long ago, infertile couples had virtually no options for bearing children of their own. Reproductive medicine came along and changed all of that by providing a solution that enabled them to create and carry their own baby through an assisted reproductive technology known as in vitro fertilization.

The first birth from this technology happened less than 40 years ago. Since that time, several advancements have been made in the field of reproductive medicine. Most were aimed at improving success rates or reducing risks, but they have happened so rapidly that there is now a dearth of legal statutes governing fertility treatments.

Custody Battles and Frozen Embryos

In vitro fertilization uses the reproductive DNA of both parents (or a donor) to create an embryo. Most couples will have enough embryos that some will need to be frozen. At a later date, the couple can use the embryos to grow their family. Alternatively, they may donate the embryos or discard them.

Many fertility clinics have couples sign an agreement regarding the fate of any unused embryos, should one of them pass away. Some have even attempted to touch on more sensitive matters, such as divorce or separation. Even in those cases, however, one or both parties can, and sometimes do, dispute what will be done with unused embryos.

To date, no state laws regarding in vitro fertilization have been passed; courts have had to make decisions on a case-by-case basis. Most seem to be ruling in favor of the party that wishes not to become a parent against their will. Rulings become more complex, however, when one party is unable to bear children outside of in vitro fertilization. Complicating the matter even further is that women, who must take fertility drugs and have their eggs harvested in a painful procedure, have what some would see as more investment in the process.

Seek Legal Help for Divorce or Embryo Custody Cases

Any divorce proceeding can be very difficult. Children and/or frozen embryos have the potential to further complicate matters. Couples facing either of these challenges should consult with an experienced Naperville, Illinois divorce and family law attorney. Contact the professionals at Pesce Law Group, P.C. for a complimentary consultation and the quality representation you deserve.