For families exploring options like IVF and surrogacy, embryo custody is a crucial topic that often arises. Understanding the legal implications surrounding custody of embryos can help prevent disputes and clarify your options.
Learn more about frozen embryo laws here.
This article will define embryo custody, outline common scenarios where issues may arise, and provide insights into how laws vary by state.
Laws Regarding the Custody of Embryos
Some states have laws regarding embryo custody, and these laws can vary extensively between states. Embryo custody refers to the legal ownership and rights associated with frozen embryos created during IVF treatments.
As technology evolves, so do the legal questions surrounding the fate of these embryos, particularly when relationships change or when couples face difficult decisions.
Several situations can lead to embryo custody disputes:
- Divorce: When couples separate, questions may arise about the ownership and intended use of embryos created during the relationship.
- Partner Disagreement: If partners disagree on whether to use, donate, or destroy embryos, this can lead to legal conflicts.
- Donation vs. Destruction: Decisions regarding whether to donate embryos to another couple or dispose of them can create contention, especially if one partner feels strongly about one option.
- Estate Planning/Death of One Partner: The death of one or both partners raises complex issues regarding the custody and disposition of embryos.
How Custody of Embryo Laws Vary by State
The legal standing of embryos can differ significantly based on state laws. Generally, embryo custody laws are based on the legal status of embryos. The definition varies between states and courts, but typically falls into one of the following categories:
Property
In some states, such as California, New York and Oregon, embryos are viewed as property, meaning they can be owned, sold, or disposed of in a manner similar to personal belongings. In California, both partners must sign an agreement beforehand, typically stating what would become of the embryos in the event of a divorce, death, or unforeseen circumstances.
Person
Louisiana is currently the only state that specifically designates embryos created through IVF to be people. Many other states have more vague descriptions like “unborn children” which puts embryos for IVF into a grey area
Potential Life
In other jurisdictions, like Arizona, embryos are considered potential life, which may impose more restrictions on their disposition and require careful ethical considerations.
What Happens to Frozen Embryos in a Divorce? [Resolving Disputes]
Judges resolve disputes over frozen embryos during divorce by applying one of three main approaches:
- Contract enforcement: When couples create embryos, they typically sign agreements with their fertility clinics that outline what will happen to embryos, and courts may use these documents as legally binding agreements.
- Examine competing interests: When two partners have different ideas of what they would like to do that are not covered by a previous agreement, the courts may balance the legal rights of each person and may decide based on what is most equal for both of them.
- Mutual consent: Some courts have allowed both partners to review previous agreements and if either party no longer wants to follow through, the embryos remain in storage until an agreement is made.
Can You Sue For Custody of Frozen Embryos?
Your state laws and any preexisting agreements determine the legal action you can take when there is a disagreement about embryos. Contact a local attorney to get help for your situation.
Laws Specific to Embryo Disposition Agreements
When couples create embryos, it’s vital to establish embryo disposition agreements that clearly outline what will happen in various scenarios. Courts often consider these agreements when disputes arise, but the enforceability may depend on state laws.
- Pre-Existing Agreements: If couples have a signed agreement in place that specifies the fate of the embryos, courts are more likely to honor that decision.
- Absence of Agreements: Without a legal agreement, courts may default to state laws or evaluating the interests of each party, which could lead to unforeseen outcomes.
The Importance of Legal Agreements
Given the potential for disputes, having a legal agreement in place before undergoing IVF is crucial. This agreement should outline:
- Ownership Rights: Clarifying who has custody of the embryos in various scenarios.
- Disposition Options: Specifying what should happen to the embryos in case of divorce, partner disagreement, or death.
- Future Use: Addressing potential future uses of the embryos, such as donation or destruction.
Establishing Custody of Embryos: Work with an ART Attorney
To navigate the complexities of embryo custody, consider consulting with an Assisted Reproductive Technology (ART) attorney. These legal professionals specialize in reproductive law and can help draft clear agreements, mediate disputes, and provide legal advice specific to your situation.
If you're looking for reputable professionals in your area, we can recommend experienced ART attorneys who can assist you, whether or not you are currently considering surrogacy.
Counseling for Emotional Support
Embryo custody can also raise emotional challenges. Working with a counselor can provide crucial support and facilitate discussions about sensitive topics. A third-party mediator can help couples express their feelings and reach a resolution.
Understanding embryo custody is essential for families considering IVF and surrogacy. By recognizing the legal implications and establishing clear agreements, you can help ensure a smoother journey toward parenthood.
Help with Custody of Embryos
If you have questions about embryo custody, legal agreements, or need support during this process, don’t hesitate to reach out. We’re here to help you navigate your options and connect you with trusted professionals in your area. Your family-building journey is important, and we are dedicated to supporting you every step of the way.
Frequently Asked Questions
Who owns embryos in a divorce?
Ownership of embryos in a divorce often depends on any legal agreements made before creating the embryos. If no agreements exist, state laws will determine ownership or possession.
Do frozen embryos have rights?
Depending on the state, embryos are classified as either property or potential life. This distinction significantly influences the actions you can take regarding the embryos.
What happens to frozen embryos after a divorce?
After a divorce, frozen embryos can remain in storage, be donated, or be disposed of. Couples can create legal agreements before embryos are created to determine their fate in the event of a divorce.
Can I sell my leftover embryos?
Generally, leftover embryos cannot be sold. However, they can be donated, and in some cases, donors may receive compensation for their contributions.