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Assisted Reproductive Technology Law: We Made Frozen Embryos and Now We Want a Divorce, an Epic Custody Battle

With the advances in the field of Assisted Reproductive Technology, things have become interesting and opened up new questions for the Courts. Recently, in the State of Missouri, a man and a woman filed for divorce and they had an entirely new issue for the judge to decide — we have frozen embryos, and we don’t agree what to do with them; now you have to decide, Judge.

What does the Judge do? Are the embryos to be treated as children, although not yet born, or are they a property interest to be awarded to one party or another? If they are treated as children, then you have to decide what is in the best interest of the embryos and who should have custody of these as yet possibly unborn children. Could the issue become even more complicated if the embryo is only one party’s genetic material and not the other’s? What if neither parties genetic material was used to create the embryos?

If one person is awarded custody of the embryos and decides to proceed to have a baby against the wishes of the other donor, then what? That was the issue in the Missouri case, McQueen vs. Gadberry, Missouri Court of Appeals, ED103138, November 15, 2016. In that case, the Wife claimed that she wanted the embryos because she wanted to become pregnant and have another child. The Husband did not want anymore children with his soon-to-be ex-wife. She certainly has a right to use those embryos to become pregnant — or does she? He doesn’t want to be a parent now, can he be forced to become a parent of another child with her now that they are divorcing?

In Court, the Wife relied on a Missouri statute that stated that an embryo is a person with protectable rights of life, health and well-being from the moment of conception onward, unless such protection is barred by the U.S. Constitution and decisional interpretation thereof. Were the Court to follow this statute, then the embryos would be considered children, and the court would have to decide who should have custody of those children.

The Husband argued that to award the embryos to his Wife, who intended to procreate against his wishes, would force him to procreate against his wishes in violation of his fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution. He argued that the Court should find the embryos to be marital property, and award them to the parties jointly and order that no transfer, release or use of them could occur without the signed authorization of both parties.

The trial Court agreed with the Husband and entered a judgement in that case, finding the pre-embryos as it called them to be marital property of a special character, and awarded them jointly as the Husband had requested. The Court agreed with Husband that to force him to procreate against his wishes would violate his constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution.

As infertility and the use of Assisted Reproductive Technology for infertile couples and for married Intended Parents unable to produce their own children increases with scientific advances and more knowledge about the availability of these options, could this happen to you? It is not uncommon for married couples to create a number of embryos when they are going through the process, in case they want to have additional children later, or in the case of an unsuccessful pregnancy, etc. Of course, couples don’t want to discuss the possibility of divorce when they are creating babies together. Why would that possibility even be on the horizon, right? Well, it happens. Surrogacy contracts cover this topic to protect surrogates; so, out of an abundance of caution, why not have that conversation while you still like one another, instead of when you are possibly not feeling so kind toward one another in the middle of a divorce?

In the Missouri case, there was testimony offered to show that the parties actually may have talked about this very topic, but there were credibility issues surrounding the testimony. It is best to deal with this either through a written agreement either with the Fertility clinic or maybe a post-nuptial agreement. If you don’t address this issue up front and have evidence of your agreement and you happen to find yourself in the middle of a divorce with frozen embryos, you never know what the Court will do.

Arkansas could rule the same way that the Missouri court did. Courts in a couple of other states already have done so. There are a couple of other States out there where this has now occurred as well. This is a link to a site, Divorce Source, that has compiled some other cases where this issue has arisen around the country and how courts ruled in those cases. http://www.divorcesource.com/research/dl/children/03mar54.shtml.

Another site for information on issues related to family formation and assisted reproduction technology listing recent cases related to this issue, as well as other hot issues regarding surrogacy and artificial reproduction technology is: http://www.aaarta.org/aaarta/home.

If you are considering embryo creation, please consider a consultation with a family law attorney knowledgeable about Assisted Reproductive Technology and Surrogacy.