Pasternak & Fidis Reporter

October 1, 2013

The Fate of Frozen Embryos When a Couple Divorces

John and Rita were married for five years when John was diagnosed with cancer. The couple then arranged to harvest and store embryos, using Rita’s eggs and John’s sperm, in case John’s cancer treatment rendered him sterile. The cancer treatment is successful, but John becomes sterile. The marriage then fails. John wants to keep the frozen embryos and have them implanted in a surrogate. He desperately wants a biological child and sees this as his only opportunity. Rita no longer wants to parent a child with John, and she does not want to have a biological child with whom she has no relationship.

Mike and Steve are married in a state where same-sex partners can legally marry. They plan to begin a family. Each donates his sperm which is then fertilized with eggs from an anonymous donor. The frozen embryos are stored while they search for the right gestational carrier. During this time, the marriage deteriorates. Mike wants to donate the embryos, but Steve wants to continue with his plan to conceive a child.

The scenarios set forth above are some of the situations that may arise when couples use assisted reproductive technology (“ART”). ART is a broad term that includes artificial insemination, egg donation, implantation of frozen embryos, and use of a surrogate or gestational carrier. These technological advances have provided new opportunities for child-bearing for those who cannot otherwise have a child. However, the law, particularly family law, has not been able to keep pace with the rapid development of reproductive technology. This can lead to many situations in which the rights and obligations of participants in ART are unclear.

There is no federal law governing ART. Many states have not enacted legislation related to ART, and there is little case law on the subject. In the scenarios set forth above, what happens to the embryos in a divorce? Can one party keep them over the objection of the other? Could a court treat them like property and divide them between the parties? If one party chooses to have the embryos implanted after the divorce, would the other be obligated to pay child support? Would it make a difference if the embryos are not comprised of the genetic material of the objecting party? These are some of the many questions that ART raises. There are presently few answers.

The decision to use ART is generally not made lightly. Parties should use the same care and consideration in deciding what should happen to the genetic material if their circumstances change. Such decisions should not be left to the courts. Through proper planning, intended parents can define each party’s rights and obligations related to ART before the process begins.  The simplest means to do so is to prepare a clear and unambiguous agreement that provides for a wide variety of circumstances.

This is the approach recommended by the American Bar Association.  In 2008, the ABA’s section of Family Law passed a Model Act Governing Assisted Reproductive Technology (“Model Act”).  The Model Act requires intended parents to enter into a binding agreement prior to the creation of embryos.  The agreement should set forth (1) the intended use and disposition of the embryos; (2) the use and disposition of the embryos in the event of divorce, death or incapacity; and (3) the terms and conditions under which the embryos will be considered abandoned.   The Model Act also recommends incorporating into the agreement a provision that, in the event that one party no longer wishes to use the stored embryos in accordance with their intended use, the other may not transfer them into the body of any woman.

The medical provider or storage facility may assist intended parents by requiring parties to execute necessary planning documents before beginning ART.  At least one court in Maryland has enforced an agreement with a medical storage facility that provided for the disposition of frozen embryos in the event of divorce.  In Mbah v. Anong (CAD11-11394), the Circuit Court for Prince George’s County, Maryland, enforced a contract that gave the parties’ frozen embryos to the wife in the event of divorce, holding the contract enforceable over the strenuous objection of the husband who wanted the material destroyed.   Courts in New York and Alabama have also enforced agreements related to the disposition of genetic material.  A clear, written agreement, signed at the onset of ART procedures, can go a long way towards avoiding a dispute in the event of a divorce.

However, the law is in flux.  Even a clear, written agreement may not be dispositive in all states.  A couple may enter into an agreement with respect to the disposition of embryos in the event of divorce. Later, when that same couple is in the midst of divorcing, one party may have changed his or her mind.  In Maryland, the objecting party may be out of luck.  In other jurisdictions, courts have found that current lack of consent should supersede any prior contract due to the nature of ART as the means to create a child.  In J.B. v. M.B., 783 A.2d 707 (N.J. 2001), the New Jersey court found that, while an agreement between intended parents should generally be upheld, when one party withdraws his or her consent to ART, then it would be contrary to the public policy of the state to enforce such an agreement.  It is unclear how other jurisdictions would rule on the same issue.

The ABA also considered circumstances in which a child was conceived and born through ART long after the relationship of the intended parents ended.  Specifically, the Model Act provides that if the intended parents divorce prior to the implantation of the embryos, then the former spouse would not be considered a legal parent to a child conceived and born after the dissolution absent an express agreement to the contrary.  Similarly, if one party withdraws his or her consent prior to the implantation of the embryos, then he or she will not be considered a legal parent to that child.  A non-parent would not be obligated to pay child support but also would not have any parental rights to custody of the child.

Most states have not enacted statutes mirroring the Model Act or otherwise provided for the disposition of genetic material at dissolution of marriage.  Should frozen embryos be treated like the furniture and divided up?  Should parties be held to their contract (if they have one) even when one no longer wants to be a parent?  Or should judges treat the parties’ rights to these potential children under different standards?  Courts are ill-equipped to make such decisions, but will do so when parties become unable to solve the problem themselves.  Results are likely to vary among the states and will remain unpredictable for some time to come.