Posted on: 24 November 2014
Divorces are mentally and emotionally difficult even under the best circumstances. But when a divorce comes on the heels of in-vitro fertilization, there are a number of complicated legal and emotional issues that may arise. In addition to the typical custody issues (if your in-vitro fertilization resulted in a birth), the bigger question is -- what happens to any remaining fertilized embryos? What if your ex-spouse would like to have more children, but you want the embryos to be destroyed? Read on to learn more about how this evolving area of law is handled.
How is "custody" of embryos handled under state law?
This is a very complex matter, and no two states have precisely the same procedures when it comes to determining the ownership (or custody) of fertilized embryos. However, case law over the last few decades has remained remarkably consistent.
The first official case on this issue was decided by the Tennessee Supreme Court more than twenty years ago. In this case, the Court held that the constitutional right to determine one's own procreation decisions meant that the court could not permit a spouse to implant the embryos against the other spouse's wishes. That is, the wish to not become a parent is given more weight by the court than the desire to become a parent.
Most cases in other states have followed this rationale, although courts will strongly encourage parties to come to an agreement on this issue during the divorce, rather than filing a lawsuit once the divorce has been finalized.
Because there is generally consensus on this among state courts, it is unlikely that the United States Supreme Court will address this issue in the near future.
What should you do if this is an issue in your divorce?
The best and easiest way to resolve this is to come to some agreement with your ex-spouse as to how the embryos will be treated. If you're unable to do this on your own, you may be able to seek the services of a mediator or arbitrator to come to an agreement you can both live with.
If your ex-spouse wishes to implant the embryos, or donate them to another couple for implantation, and you are opposed to this, you may wish to file a civil case or motion for injunction in your local trial court. The case law in most states would support your claim, and prevent your spouse from taking control of the embryos.
For more information, contact Kenneth J. Molnar Attorney or a similar legal professional.Share