Embryos and Divorce
According to the National Embryo Donation Center, there exists a million frozen embryos in the United States.
Below is a question that is increasingly occurring in modern day divorces. (Inconceivable – pun intended – in the early years of my law practice – I’ve been doing this for almost 25 years) .
Who Gets the Frozen Embryos in Divorce?
As with all things family law – it depends. The law is not clear on this – and it differs from state to state.
Where there exists frozen embryos created during marriage, the options at time of separation/divorce are the following: award custody to one or the spouse (to do with as they see fit); donate them; or have them thawed (destroyed).
It pains me to talk about embryos like property, because embryos turn into children made in God’s image. I used to be short-sighted when I was young. I was wrong.
Humans made in the image of God cannot and must never be divided like bank accounts.
Usually Divided By Contract
So, if there are frozen embryos, the most common option opted by the Courts (unless you’re in a state that prohibits this), is to award them pursuant to the couple’s agreement. Their contracts would govern.
For example, if you have a prenuptial agreement that states how embryos will be divided. Or signed paperwork at the fertility clinic.
Sometimes a Contract Doesn’t Work
However, if you live in a state which prohibits this, the law would override your contract. Such is the case in Missouri.
In 2016, a Missouri court ruled that Jalesia Kuenzel could not keep the embryos she created with her husband during marriage. (Even though the couple had written signed contract stating she could keep the embryos in event of divorce.)
They had four embryos – two became her twin boys. The remaining two were frozen. The couple agreed that if they divorce, she would be awarded the embryos. They signed paperwork documenting their agremeent at the fertility clinic.
At the time of the divorce, Jalesia dutifully referred to the contract. However, the Court declared the contract invalid, and ruled against Jalesia.
Yep, courts sometimes don’t enforce signed contracts. This, by the way, is the reason it is completely malpractice to guarantee a prenuptial agreement is enforceable.
You Can’t Force People to Become Parents!
Sure, I can understand why people think this way. You shouldn’t FORCE people to be parents.
This isn’t what is happening here. (This is the “pro-choice fallacy”. No one is actually forcing you to have a baby, because women aren’t walking around and zap, become pregnant!)
But I digress. The whole reason we HAVE embryos in the first place is because the couple wanted kids! No one forced them to freeze embryos!
As Ms. Kuenzel said, “That’s the whole reason for doing IVF is to be a parent… It’s not something you do by accident.”
Thus, to destroy human embryos upon divorce falls along the same line of thinking as “I don’t want my kids now that I am going through a divorce”.
Human Embryos
Embryos are human. If they aren’t, what is the problem of donating them? I read this article where someone who had frozen embryos said this:
I could never donate my embryos because I’d be certain that I’d spend the rest of my life looking for what I would still consider my child. Most couples dealing with the disposition question feel the same. According to research done by Nachtigall and others, only a small number of couples—just 6% in one study—decide to donate their embryos.
States Where Contracts Don’t Work
Arizona and Alabama are states where your contract regarding disposition of embryos probably won’t be controlling. (Which is fine is your contract is consistent with the law, but a big problem if your contract goes against the law).
Arizona
Arizona actually has a law on point about the disposition of human embryos: 25-318.03 – Human embryos; disposition; responsibility for resulting child; definitions. Basically, custody of the embryos will be awarded to the spouse who is more likely to allow embryo to “develop to birth”.
The law favor life, which I am a big fan of. However, I also think it is difficult to prove which party is more likely to allow embryo to “develop to birth”. It opens the door for fraud and lies about who is more willing to let it “develop to birth”.
I know what you are thinking – fraud and lies? In Family Court? Nah, no such bad behavior ever happens in family court!
Alabama
Recently, in February 2024, Alabama Supreme Court handed down a decision which ruled frozen embryos are children under Alabama’s Wrongful Death of a Minor Act; 6-5-391 Wrongful death of minor, and granted parents a private right of action against any person whose wrongful act caused death. Read Alabama Supreme Court Embryo Decision.
Dehumanization
It really pains me to research this topic. It is an umcomfortable topic, and the logic makes no sense.
Some say they don’t want to donate their embryos because “I wouldn’t want to see my child out there walking around“, yet they have no qualms killing the baby embryo.
Child Abuse
Because the surrogacy industry is relatively new, and not heavily regulated, depravity is rampant.
This Chicago man, Adam Stafford King, was busted by a sting with distributing child porn, and it turns out he had plans to rape an infant he and his husband commissioned via surrogate (as revealed in his disgusting text messages).
‘I do love the idea of inviting a buddy over when I have my boy … just has to be someone I can trust obviously … I plan on getting my c*** in him asap,’ he wrote.
On two separate occasions, King shared ultrasound photographs of the unborn child. King admitted to drugging his nephews and nieces, giving them large doses of Benadryl before abusing them.
Returning a Child Conceived By Surrogacy
Then there are people who are trying to return their children conceived through surrogacy, because “he doesn’t have our genes”. Trying to return a child conceived through surrogacy as easily as they can return packages on Amazon.com! There are actually Reddit columns on this sick topic!
Surrogate Mothers
Finally, what about the surrogate mothers? What little rights they have!
Recent Comments