Scientific advances have provided a way for a couple to freeze and preserve an embryo that can be implanted in the uterus at a later date. Couples may use this option when facing a health issue that could put fertility at risk, such as cancer. However, if a couple separates or gets divorced after the embryo is frozen, there may be a dispute about who gets to keep or use the frozen embryo.
If you are considering preserving an embryo for possible conception at a later date, talk to your North Carolina family law attorney about what to do in the event of a divorce, incapacity, or death of one spouse.
Freezing an Embryo for Future Pregnancy
When a couple uses the man's sperm and woman's egg to undergo in vitro fertilization (IVF), both parties have an interest in the embryo. When going through the process of IVF and cryopreserving the embryo for later use, the couple generally intends to keep open the possibility of later using the embryo to try and get pregnant to have a child. However, in the time between providing the egg and sperm and the decision to implant the embryo in the womb, things can change.
Reproductive Clinic Agreements
Donors of the egg and sperm may not be considering a divorce, separation, or conflict over the embryo when using assisted reproductive technology (ART). However, reproductive clinics are more likely to consider the possibility of a future conflict in handling such a sensitive issue.
For example, if the couple gets a divorce, one party may want to then go through with procreation while the other party may not. In many cases, the reproductive clinic forms and agreements will provide for such occurrences as divorce, death or one party, incapacity, or non-payment of storage fees. Options may include procreation by one spouse, donating the embryo, or disposing of the embryo.
When the agreement or other contract between the parties covers divorce, separation, or other disputes, the language of the contract will generally control what happens to the embryo. For example, if the agreement states that in the event of a divorce, the embryo will be donated for research, the court may not be likely to go against the agreement and allow one spouse to unilaterally decide what to do with the embryo.
North Carolina Frozen Embryo Laws
Some states have laws which require fertility clinics to have patients agree on how to handle an embryo after divorce or other specified situations. However, North Carolina does not yet have any specific laws requiring fertility clinics to have such agreements (although most may still require this to be determined before providing services).
Frozen Embryo Property and Custody Disputes
The courts may be hesitant to give control over a frozen embryo to one party over the other in a dispute. The frozen embryo holds the potential for procreation, even if it is against the will of the other party. However, a court in Arizona determined that a woman will be able to keep the frozen embryo of her egg and former husband's sperm after a divorce.
In Terrel v. Torres, the Arizona Court of Appeals awarded the embryo to the female donor of the egg, Ruby Torres. In this case, the agreement provided that the embryos could not be implanted without the express consent of both parties. However, the agreement also provided that in the event of a separation, the court could decide what to do with the embryos. The court weighed the interests of Torres' interest in having a child over Terrel's interest in not being a father. The court ultimately decided in favor of Torres.
Divorce Disputes in North Carolina
Disputes in a divorce include disagreements over child custody, visitation, property division, and even who gets to keep frozen embryos. The attorneys at Caulder & Valentine provide experienced family law services to individuals seeking help after a divorce or legal separation. Contact us in Shelby today for a consultation.
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