Custody of Embryos?

In this age of family building options, emerging issues arise when it comes to divorce. Many couples pursue their dream of being parents through the use of Assisted Reproductive Technology (ART). As a result, people are creating embryos which they freeze and store in order to provide them the future option of having children.

However, what happens to these embryos when the couple gets divorced? I conducted a Mediation where the father wanted to have the embryos destroyed after the divorce and the mother wanted the embryos implanted in her so that she could have additional children. Although, as a mediator, I cannot give legal advice in this area, I found the issue intriguing and did a little research for my own enlightenment.

A brief review of applicable law did not provide much definitive guidance. However, it appears courts typically do not view embryos as “minor children;” therefore, it should not be a custody issue. Instead, it seems embryos are considered “property,” subject to disposition similar to other marital property. Moreover, although I do not know if there have been any dispositive cases on the issue, it appears that courts will not force someone to be a parent against his or her will – meaning, one parent cannot implant the frozen embryos without the other parent’s consent.

All very interesting…and something to consider ahead of time for those of you pursuing parenthood through ART.  So, what happened with the couple I described above? They reconciled and the issue did not come up again!

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