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Who gets “custody” when a married couple has frozen embryos but then decides to divorce?

It's still a complicated issue legally if a partner in a marriage that has ended in divorce is able to use previously frozen, fertilized eggs without the other person's consent.

Some couples, for various reasons, decide to create frozen embryos in the case that they would want kids in the future. But if that couple splits up, who gets to decide if they are used?

A signed document on the matter up front could be helpful, but legally, it’s not so simple. Judith Daar of Whittier Law School told NPR a document is not necessarily decisive. She said courts vary greatly with this decision, and she pointed to a particular case in Massachusetts.

“There were seven contracts in that case, because the couple had seven rounds of IVF [In Vitro Fertilization], and all of them provided that she would get the embryos,” Daar says. “But in the end, the court said that it would violate the public policy of that state to force the man to become a parent against his wishes.”

Generally, Daar pointed out, the courts tend to side with the person who does not want to be a parent any longer. But certain circumstances can shift that perspective.

San Francisco couple Dr. Mimi Lee and Stephen Findley decided to create five embryos once she was diagnosed with cancer. They are now divorced, and Lee still wants to have a baby. So why is this case different?

“My client at this point in time is 46 years old, and just simply as a matter of her age she is virtually infertile,” said Peter Skinner, the attorney for Lee. “She really doesn’t have any other realistic option to have a biologically related child, other than to use the embryos that she created for that very purpose.”

According to NPR, Findley’s attorney did not comment on the situation, but it appears that the contract between the couple is not actually legally binding.

But beyond this kind of case, when it comes to who is ready and willing to be a parent, a bigger question is at hand. Should an embryo be considered physical property when it comes to splitting things up following a divorce?

“Whether an embryo belongs to the people who created it, as property would, as something else they would divide in a divorce,” Judy Sperling-Newton, the director of the American Academy of Assisted Reproductive Technology Attorneys explained. “Or whether they’re living beings and should be considered the way children would be considered in a custody action.”

Daar had a different perspective on the matter:

“The fact that technology got us into this problem is also suggestive of the fact that technology will eventually get us out of this problem,” she said. She suggested that because it’s possible to freeze unfertilized eggs, it might be in a couples best interest to freeze sperm and eggs separately.

This issue will inevitably be different in some ways for each couple, but it appears with advancing technology that the time has come for this situation to have more clear legal parameters.

Photo: Flickr user ZEISS Microscopy

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