Who Owns the Frozen Embryos?

Since 1978 when the first “test-tube baby” was born in England, couples who are unable to conceive a child naturally have turned to in vitro fertilization (IVF). This involves extracting an egg from a woman, putting it in a petri dish and fertilizing it with sperm from a donor. The fertilized egg is then inserted into a woman’s womb to develop into a baby.

Several different scenarios may be involved. The most common ones are:

  • A husband’s sperm is used to fertilize his wife’s egg.
  • A husband’s sperm is used to fertilize an egg not his wife’s.
  • A wife’s egg is fertilized by the sperm of an unknown donor.
  • The sperm of one member of a gay couple is used to fertilize an egg from an unknown donor.
  • The egg of one member of a gay couple is fertilized by the sperm of an unknown donor.

The IVF process is successful approximately 50 percent of the time and a child is born. Due to the 50 percent fail rate, several eggs are almost always fertilized at one time in separate petri dishes. The ones that are not inserted are frozen and stored in the clinic. They can stored for years and be inserted any time.

For those couples who stay together, they have the potential for having more children. When couples divorce when there are still frozen embryos, a major question is: Who owns the embryos?

With Limited Exceptions, Privacy Right Not to Have a Child Generally Prevails

There have been a number of cases where one party wants to keep the embryos and have them implanted, but the other party objects to becoming a parent and wants the embryos destroyed. Courts have struggled with coming up with a fair solution, balancing one person’s desire to become a parent with the other person’s objection to having a child.

Most courts have concluded that the constitutional right to privacy that prevents government interference with “the right to have children” extends to the right of a person not to have children. The balancing of rights weighs against forcing a person to have a child against his or her wishes.

Courts have issued conflicting opinions about whether the embryos can be destroyed according to contract principles when the parties signed an agreement that, in the event of a divorce, the unused embryos would be destroyed by the clinic where they were stored. Some courts have enforced the contract, others have not, concluding that a couple should not be bound by a form they signed that was presented to them by the clinic years earlier.

The law concerning ownership of embryos is still in flux. In a 2009 unpublished opinion from the state of Washington, the embryos were awarded to a husband over the objection of the wife when it was not the wife’s egg involved and she had no genetic connection to the embryos. In 2012, a Pennsylvania court awarded the embryos to the wife when it concluded that the wife had no chance of ever becoming a parent without those particular embryos.

With this area of the law so undecided, if you are divorcing and own embryos with your spouse, you need legal assistance since each case is decided on its own unique fact pattern.

Sources

http://www.familylawyermagazine.com/articles/embryos-in-divorce, http://caselaw.findlaw.com/pa-superior-court/1598692.html