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What Becomes of Frozen Embryos in a Divorce?

In 1984, Zoe Leyland became the first baby ever born from a frozen embryo.  We’ve come a long way since then, and Assisted Reproductive Technology has become a viable option for couples wanting to start a family, but who are unable to do so without assistance.  With many women waiting longer to start a family than in years past, instances of infertility have become more prevalent.  Reproductive technology has remedied that problem for millions of couples, with the development of options ranging from in vitro fertilization to cryopreservation of embryos.  While this has been a life-changing, remarkable solution for many, it has also opened up a floodgate of legal and ethical questions.

When a couple goes through the emotional process of using reproductive technology, everyone is focused on the hope of a positive outcome and fulfilling their dream of raising children together.  But what happens when a couple decides to dissolve their marriage when they’ve successfully created frozen embryos that now need to be contended with?  Who has custodial and disposition rights over those embryos, and what legal rights do each individual have in regard to utilizing those embryos to become a viable life?

Perhaps surprisingly, federal law does not currently state a ruling on this, and the laws governing assisted reproduction are left up to individual states to decide.  Whether considered persons or chattel, controversy aside, frozen embryos have been added to the list of unusual types of property that have to be contended with during a divorce.

As it stands, Florida is among the few states which have enacted statutes to provide for what happens to frozen embryos.  Under Florida law, facilities that perform the harvesting of gametes (sperm and eggs) are required to have both members of the couple execute a written agreement beforehand along with their doctor, outlining what happens to any gametes or pre-embryos in the event of a future divorce, death, or other unanticipated circumstance.  But a physician’s failure to provide such an agreement is not of any consequence to him or her.  So, where does that leave you?

Get Expert Advice from a Professional

Couples using reproductive medicine should discuss the legal implications of embarking on this endeavor before the fact, and seek the advice of an experienced lawyer.  Since Florida law requires it, it’s important to choose a fertility doctor who provides you with a written agreement to sign, and to have the proper legal guidance in your corner to safeguard you against unforeseen circumstances.  The lawyers at Goodblatt · Leo are knowledgeable about the laws governing the custody and disposition rights of pre-embryos and can guide you in making informed decisions.  Contact us today by phone, or through our website, to set up an individual appointment.

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