Assisted Reproductive Technology & Divorce: “Custody” Battles Over the Kids You Don’t Have (Yet?)

October 11, 2012

Custody and visitation issues are often the most important and contentious parts of a divorce.  If you and your spouse have embryos in storage at an infertility clinic or other medical facility, the question of who “owns” that stored genetic material may be almost as important as determining the custody of your existing children.

As I mentioned in a previous blog entry, assisted reproductive technology (commonly known as “ART”) law is so new that it’s difficult to say much about it with anything close to certainty.  However, trends in the laws of other states provide a preview of how these disputes could turn out in Minnesota.

(Note: In at least some jurisdictions, a person who intended to be the parent of a child of ART has the same rights whether or not that person contributed a gamete (sperm or egg) to make the embryo.  I use “intended parents” below rather than narrower terms such as “genetic parents” or “spouses.”)

There seems to be a consensus that frozen, unimplanted embryos are not “persons” for purposes of family law.  Courts tend to treat embryos more like property than people, but they also tend to recognize that a disagreement over who gets genetic material that could, in theory, become a child is very different from a disagreement over who gets the good china.  In practice, this means that courts usually give intended parents more opportunity to change their minds about disposition of genetic material than they would have under a normal contract, but the parties’ prior agreements are still important.

Significant trends in other states include:

  • If both intended parents are in agreement, their wishes for the disposition of their embryos usually trump those of the medical facility.  The intended parents are responsible for any additional storage costs, though.
  • If both intended parents agree in writing as to the disposition of their embryos prior to divorce, their written agreement usually controls what happens to the embryos.  However, some courts, including the Iowa Supreme Court (In re Marriage of Witten), have held that even if there is a prior written agreement, if the intended parents disagree at the time of divorce, the embryos will be placed in storage indefinitely until the intended parents agree on their disposition.
  • If there is no written agreement between the intended parents as to the disposition of their embryos, and one parent wants to use them to have a child but the other parent does not, the parent who does not want the embryos used usually wins.

These are very general observations.  There are only a handful of ART cases throughout the country, so courts are very far from addressing all the twists of embryo ownership agreements and disputes.  Also, there is no guarantee that Minnesota courts will follow cases from other states.

These cases demonstrate at least one facet of ART very clearly: it’s not unusual for people to change their minds about what they want done with their genetic material.  Stored embryos created with an ex-spouse’s genetic material may be a person’s last hope of having a biological child, particularly for women.  Because feelings and circumstances surrounding fertility and stored genetic material can change so much, it’s a good idea to continue discussing this topic with your spouse or partner over time. Particularly:

  • Though it’s not foolproof, if you and your spouse or partner are undergoing fertility treatments, it’s wise to have serious discussions about what will happen to your embryos if you’re no longer together and to consult an attorney about entering into a written agreement.
  • If you’re contemplating or in the midst of a divorce or separation, stored genetic material is definitely something you should talk about with your attorney, even if he or she doesn’t ask you about it.
  • Also talk about stored genetic material with your estate planner, both so it’s clear what happens to the genetic material if you or your spouse or partner dies, and so your attorney can make sure that your child will be provided for in your will, even if he or she is born after your death.

This information is general in nature and should not be construed as tax or legal advice.