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Can I keep my embryos if I get a divorce?

| Jun 10, 2020 | Family Law |

Before egg freezing was more stable, embryo freezing was a common practice for those experiencing infertility. However, while no one gets married or makes fertility decisions together intending to split up, it does happen.

Property division and child custody are common concerns in a divorce, but what happens to fertilized embryos? Are they considered children or property, and who has the right to decide what happens to them?

Life goals may change

Another complication is whether both parties still want to be parents at all. One person may yearn to have a child while the other has decided parenthood is not in their future.

Such was the case for a recently divorced couple. After several appeals, the Arizona Supreme Court ruled in favor of the ex-husband, who did not want to become a father, and the ex-wife had to donate the embryos to a third party. She was a breast cancer survivor and these embryos were her only known chance to become a biological mother.

Rulings have varied state to state

The Massachusetts Supreme Court made a similar decision in 2000, despite the ex-husband signing a consent form nine years earlier. In its ruling, the court stated “enforcing the form against him would require him to become a parent over his present objection to such an undertaking.”

However, many other states, such as Illinois and Pennsylvania, have sided with the ex-wife when she has no other means to birth a biological child.

Are embryos property or children?

Unfortunately, there is no clear answer for classifying embryos because most judges have taken the stance that they are somewhere in between. Legal experts expect a case will inevitably make its way to the U.S. Supreme Court.

If an embryo case does make it to the nation’s highest court, it will impact other social issues such as stem cell research and abortion. However, it would give those who wish to become parents a clearer answer on their genetic material rights.