Who Gets Control of Frozen Embryos in a Divorce?

Posted by Josh Valentine | Sep 16, 2019 | 0 Comments

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 custodyvisitationproperty 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.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar


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