Who Has The Rights To Frozen Embryos After A Separation Or Divorce?

Infertility affects thousands of California families every year, and many couples realize their dreams of a family only through in-vitro fertilization (IVF) treatments. Unfortunately, many of these families also separate or divorce, leaving cryo-preserved embryo or embryos, in legal limbo. Many couples find themselves embattled in family court, arguing over which side is entitled to custody of the embryos, and whether one former-partner’s wish to use the embryos (and to create a biological child of the dissolving marriage) outweighs the other’s partner’s wishes. Who wins in a battle over frozen embryos?


Currently, the law in this area of family law is evolving, and is highly dependent upon the specific facts of each case, which is why it’s important to retain a qualified and experienced family law attorney in the event of either marriage separation or divorce.


One way to head off a battle over rights to frozen embryos is by signing an Embryonic Disposition Agreement, which is commonly offered by IVR providers. These agreements will clearly spell out which party has legal rights to the frozen embryos in the case of marital separation or divorce. These agreements allow family court judges to make decisions based on clearer contract law rules, rather than the unsettled family law surrounding the rights of parents to frozen embryos. Unfortunately, however, these agreements are not a hard and fast solution to the question of who has the rights to frozen embryos following separation or divorce. As these agreements determine and define the private and future reproductive rights of individuals, some judges have discarded them as contrary to public policy, as individuals should be free to make reproductive choices based on current situations, not on agreements previously made.


If you are facing a marital separation or divorce and have frozen embryos, please contact us today to set up a free consultation and to discuss what options may be available to you. In this evolving and changing legal landscape, you need a family law attorney at your side and the Law Office of Anne Dowden Saxton has the experience, knowledge and resources to assist you.

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