For decades, the fate of embryos after a couple ends their union has been contested. A deeply personal decision to become a parent or not has played out in the court system, with rulings and litigation tactics differing greatly across the nation.
A family law attorney in New York City can help you take a proactive approach to embryo custody in the event of a divorce. If you and your spouse are thinking of creating embryos for future use or are concerned about the custody of the embryos you created, it is important to be well-informed. At Randi L. Karmel, PLLC, our experienced legal team understands the sensitive and emotional nature surrounding embryo custody. We can help you mitigate the risk should one spouse change their mind, or our divorce lawyers can help you protect your rights to your genetic material.
Why Are Disputes Over Embryos So Complex?
For more than 20 years, the courts have struggled with the issue of custody regarding genetic material. Several factors contribute to the complexity of the matter:
- How should an embryo be categorized?
Cases have categorized embryos differently, including:
- Genetic material, but not a legal person with rights
- The interim status between property and a person deserving of special consideration for the potential for life
- While no court has upheld an embryo as a person, the theory has been argued many times
Historically, the pattern of court rulings has found a way to prevent embryos from being used. Despite the purpose of creating the embryos, contracts, and a woman’s inability to reproduce by any other means, many courts have held an ex-spouse’s desire not to be a parent is more important.
Recently, courts have used the following approaches, separately or in combination, to decide the fate of frozen embryos:
- Contract Approach
The most recent rulings favor upholding the contract signed before the embryos were formed.
In a California case, Dr. Lee v. Findley, the couple signed documentation stating the embryos should be destroyed if they divorce.
Dr. Lee was rendered infertile due to cancer treatments and created the embryos with Findley to have a biological child.
California did not consider infertility and ruled the embryos be terminated.
In an Illinois case, Szafranski v. Dunston, the court upheld that the oral agreement between the unmarried couple was enforceable. Custody of the frozen embryos was granted to Duston.
- Balancing of Interests
Colorado has set a new precedent for future embryo custody cases. In Rooks v. Rooks, initial rulings favored Drake Rooks’s desire to destroy the genetic material. However, the Colorado Supreme Court reversed the ruling, sending the case back to decide on the following guidelines:
- What is the intended use of the embryos?
- Is fertility an issue?
- What were the reasons for creating the embryos?
- Will the potential genetic parent suffer any emotional, logistical, or financial hardship if the embryos are used without their consent?
- Did one spouse or the other use the pre-embryos as unfair leverage in a divorce?
- Any other consideration pertaining to the parties’ circumstances
- Contemporaneous mutual consent approach
Upon seeking to remove the decision from government intrusion, some courts rule that no transfer, release, disposition, or use of pre-embryos can occur without the signed authorization of both donors. This approach effectively ensures the embryos will be destroyed if the parties disagree. Despite multiple contracts, the Massachusetts Supreme Court favored the ex-spouse who did not want to become a parent in A.Z. v. B.Z.
How Can A New York Family Law Attorney Help?
Couples who are thinking of freezing embryos should know there are significant consequences should they end their union. The mandatory destruction of embryos can be psychologically damaging, especially if they are the last chance of becoming a parent.
Conversely, forcing a person to become a parent imposes an unwanted identity.
A New York City family law attorney can help you explore the impact a divorce can have on the creation of embryos, as well as;
- Recommend alternate solutions, including anonymous donation or freezing unfertilized eggs and sperm cells
- Create an agreement that expresses subsequent action should fertility be at risk
Contact A Family Law Attorney In New York City Today
If you and your spouse are considering the formation of embryos or are concerned about the future of existing ones, consult a New York City family law attorney immediately. You deserve to be informed of all your options to safeguard your rights and reduce the risk of any negative, life-altering consequences.
The compassionate legal team at Randi L. Karmel, PLLC, will fight aggressively to protect your best interests. Contact Attorney Randi Karmel today for a consultation to discuss your unique matrimonial or family law matters by clicking here or calling us at 212-755-0224.