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How do courts deal with frozen embryos in a divorce?

Many New York couples fail to feel as though their families are complete without children. However, whether it stems from timing, inability to conceive or some other reason, some couples decide to use in-vitro fertilization to create embryos that could result in a child someday. When couples decide to wait to use them, the clinic could freeze them for future use.

Perhaps you are part of an LGBT couple, and one of you provided the biological material needed to create the embryos with another donor. Taking this step may relieve some of the stress you both may feel about starting a family. This wonder of modern medical science may provide you and your spouse a gift, but what happens if you don't use those embryos and your relationship ends?

Consider an alternate future

When embarking on the IVF process, you and your spouse may only be thinking about what the future will look like with a child. You may want to take a step back and carefully consider what happens if your marriage ends. More than likely, only one of you will be providing the biological material necessary to produce a child, and the law may consider the embryos that potential parent's property.

The fact is that the law cannot force someone into becoming a parent. You may have already taken the step to relieve the other donor of any legal responsibilities if a child is born from one or more of the embryos. What about you? According to the agreement you signed with the clinic, you may have the right to destroy or use the embryos as you wish, but the legality of these agreements remains a challenging question for the courts.

If you and your spouse entered into a separate agreement regarding the embryos, that document may take precedence in a divorce. The law in this area remains cloudy, even for couples who both donated biological material to create the embryos, and you could face a significant legal battle over what the court considers a property division issue, not a custody issue. Therefore, the rules that apply to children born of the relationship do not apply.

Seek support

The law allowing same-sex marriages remains young when compared to family laws for opposite-sex couples. Even courts here in New York still struggle to appropriately navigate issues unique to a same-sex divorce. When an issue such as the disposition of frozen embryos gets thrown into the mix, your situation could become even more complex.

If you have not yet been through the IVF process, it may benefit you and your spouse to discuss protecting each of your rights in advance. If you have already been through the process and have frozen embryos stored with a facility, it may not be too late to come to some agreement regarding their disposition in the event of a divorce. If neither of these options is a consideration because of an impending divorce, seeking legal support as quickly as possible may be wise.

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