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Who gets custody of embryos in a divorce?

As more and more people postpone having children, embryo freezing has been increasing in popularity. The process of freezing an embryo means that an egg is fertilized through in vitro fertilization by either a partner’s or a donor’s sperm. The embryo is then frozen until the woman or the couple is ready to be pregnant. Embryo freezing has raised complicated legal and moral dilemmas—many of which have not yet been addressed by the law. One question that has been raised is who gets custody of embryos in a divorce?

The issue of which spouse gets custody of an embryo is very complex; currently, there is no consensus on how to resolve this issue. Courts in various states have really been all over the map with the issue, if they have addressed it at all. 

Massachusetts is one state where custody of frozen embryos has been raised. Back in 2000, a case concerning embryos came before the Massachusetts Supreme Court. In that case, a husband and wife signed an agreement stating that their frozen embryos would be awarded to the wife if the event of the parties’ separation. The wife could then choose to implant the embryos. After the couple divorced, the husband argued that the contract was not enforceable. The Court ruled in favor of the husband, stating that it was against public policy to force him to become a parent against his will.

Aside from this case, Massachusetts’s courts have not really addressed custody of embryos. In fact, this issue is still unresolved in many states, not just Massachusetts. The cases seem to hinge on a number of key questions. Does either party wish to procreate? Did the parties sign a contract that explicitly states what will happen to the embryos if the parties separate? Should the embryos be considered as children such as in a child custody action? Or should the embryos be seen as property under the law? 

If you and your partner are considering freezing embryos or utilizing other assisted reproduction technology, you might want to consider speaking with an experienced family law attorney. As this post demonstrates, there are important legal implications of choosing to freeze embryos, eggs, and sperm. It is important that you understand all of these implications before the fact.

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