Keith B. Schulefand, Esq.
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What happens to those frozen embryos in a divorce?

When you and your future ex-spouse decided to marry, you may have agreed to wait to expand your family with children until after you both had a chance to focus on your careers. As time went on, you may have decided to take measures to ensure that when you wanted to have children, you could.

For you, this may have meant using cutting-edge medical technology to freeze embryos for future implantation. Unfortunately, your marriage didn't last long enough for you to use them. Now you and your estranged spouse simply cannot agree on what to do with those embryos. When you took this step, you may not have anticipated the impending court battle you now face.

The law hasn't caught up to the technology

Scientific advances seem to happen at an increasingly rapid rate. Unfortunately, many of these advances come with legal and ethical challenges not accounted for by the laws of New York or any other state. Frozen embryos tend to fall into this legal quagmire. In fact, the case law regarding the disposition of these embryos provides little help to someone who wants to keep them for future use.

In more than one case, the wife wanted to keep the embryos, but the husband objected. In one decision, the judge awarded "custody" to the husband, who wanted to put any child born from them up for adoption. Another court in another state ruled that the husband should not be forced to father more children.

In yet another case, the court granted a husband's request to keep his future ex-wife from using the embryos before finalizing the divorce. Due to the complicated issues involved, the court also ordered the embryos to remain frozen until some undetermined point in the future when the law may catch up to the technology.

Courts have also decided in favor of wives claiming the embryos represent their last chance to have biological children or ordered them destroyed in other jurisdictions.

What this means for you

Regardless of which side of the issue you come down on, you could face an uphill battle. Until such time as federal and/or state legislatures deal with this issue one way or the other, the court could make its decision based solely on the strength of the arguments presented. You may find it in your best interest not to attempt to wage this battle alone.

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