The Custody Challenge of Frozen Embryos

by Mar 10, 2024Divorce0 comments

States around the nation are struggling right now with how to classify frozen embryos and deciding what, if any, additional laws need to be put into place to protect in vitro fertilization (IVF) clinics, doctors and patients. But if you’re in the middle of a divorce and currently have frozen embryos on ice, you need to know what current Ohio law says about the disposition of frozen embryos during a divorce.

The Legal Complexities of Divorce During IVF

Divorcing during the process of IVF introduces a unique set of legal complexities. Assisted reproductive technology, while offering hope to many, brings forth challenging questions when a relationship dissolves. The heart of these complexities often lies in the disposition of frozen genetic material—whether embryos or gametes. In the realm of family law, advancements in assisted reproduction have outpaced legislation, leaving courts to navigate these uncharted waters on a case-by-case basis. Considerations extend beyond physical custody, touching on the deeper issues of potential life and the intent of both parties at the time of IVF treatment.

Characterizing Frozen Embryos

The first challenge facing the Court is determining how the embryos will be characterized. There is an array of differing case law and statues in the United States that are in conflict, and the situation is only growing more complicated. Previously, Ohio law has considered the fact that the U.S. Supreme Court had continuously rejected characterizing a fetus as a person to determine that frozen embryos should be treated as marital property. As such, the embryos are subject to distribution by the court just like all other marital property is.

The Status of Frozen Embryos in Divorce

In matters of divorce, the status of frozen embryos emerges as a complex issue, intertwining legal, ethical, and emotional threads. Courts must consider not just who has the right to these embryos, but also the future implications of their use. Unlike child custody battles that follow established legal frameworks, custody of frozen embryos in Ohio divorce cases, and indeed across many jurisdictions, enters a gray area. Courts have to balance the right to not procreate against the right to procreate, often considering factors such as the viability of alternatives (like the ability to conceive naturally or through other IVF cycles), the prior agreements between the parties, and the intentions behind embryo preservation.

Disputes Over Embryo Custody and Use

Common disputes over embryo custody and their use often pivot on whether one party wishes to use the embryos to have a biological child post-divorce. These disputes can become emotionally charged, raising significant ethical and legal questions. The arguments typically revolve around:

  • The intent at the time of the embryo’s creation.
  • The existence and terms of any pre-IVF contracts or agreements.
  • Each party’s fundamental rights and interests.

Such cases necessitate a balancing approach, juxtaposing one individual’s desire to become a parent with the other’s preference not to. Without clear preemptive agreements, courts must tread a delicate line, potentially invoking principles of equitable distribution or contractual approach grounded in state law.

That said, remember that the court’s goal in a divorce is to terminate the financial and property bonds between couples and make final determinations on issues of custody and support. Allowing one party to use an existing embryo to create new life creates new familial and financial bonds, as well as new issues of custody, support and inheritance that would be in direct opposition to the general law in divorce, which is to provide a separation of the parties.

Navigating Divorce and IVF: Practical Tips and Guides

Pre-IVF Contract as an Essential Step

The complexity and emotional toll of disputes over the custody of frozen embryos can often be mitigated by a pre-IVF contract. Such contracts, ideally prepared with the guidance of a knowledgeable attorney, can outline the disposition of genetic material in the event of divorce, incapacitation, or death. Critical components should include:

  • Ownership and use rights of embryos.
  • Conditions under which the embryos may be used or destroyed, including in the event of a divorce or dissolution.
  • Financial responsibilities for storage and future procedures.

A well-crafted pre-IVF agreement can serve as a mutually acceptable roadmap, offering a clear direction during turbulent times. Furthermore, all reputable IVF clinics should require couples to execute this contract before proceeding. You and your spouse will likely be bound by the choices you made at the time of the contract unless you can reach a new, different agreement during your divorce.

Seeking Legal Advice Amidst Divorce and IVF

Given the intricate nature of IVF-related divorce cases, securing legal representation from an attorney versed in family law is paramount. An experienced family lawyer can navigate the complexities of state law, ensuring that agreements are enforceable and protect clients’ interests. When choosing a lawyer, consider their expertise in similar cases, their approach to conflict resolution, and their ability to articulate a plan tailored to your circumstances. Embarking on IVF is a significant life decision, and legal counsel can provide invaluable support in safeguarding your future.

The legal issue of frozen embryos is relatively new and, like most newer areas of the law, constantly changing. As a result, there is rarely a black and white answer so it is important to discuss the details of your situation at the beginning of the frozen embryo process. IVF can be one of the most stressful things a couple can go through and, unfortunately, it is not uncommon for an unsuccessful IVF to result in a fractured relationship or even divorce.

Schedule Your Free Consultation

As the landscape of family law continues to evolve with advancements in assisted reproduction technology, understanding and navigating the legal, ethical, and emotional intricacies becomes crucial for couples. At Kirkland & Sommers, we combine our depth of local court expertise and custom legal strategies to support and guide our clients through these challenging terrains, always aiming for outcomes that align with their goals and values. Give us a call today so we can discuss your unique situation.