Contract, not custody, law applies in frozen embryo disputes

| Jun 14, 2021 | Fertility Law |

In vitro fertilization (IVF) procedures allow couples in California and around the country who thought that they could never have children to enjoy the pleasures of parenthood. Fertilized embryos can even be frozen and stored for use later. The IVF facilities that offer fertility preservation services ask couples to sign documents that include cryopreservation and disposition provisions that state what should be done with frozen embryos in a divorce, but these agreements are often challenged in court.

Contract law

Some divorcing individuals have urged judges to follow child custody guidelines in these situations and make rulings based on what is in the best interests of the frozen embryos, and these arguments are sometimes made passionately because the women involved may have no other way to become mothers. Lawmakers in Arizona have even passed legislation that requires judges to ignore contractual provisions to the contrary and award frozen embryos to whichever divorcing spouse has vowed to give them a chance to live, but the courts in most parts of the country follow the general principles of contract law in these matters.

California case

The first time the issue arose in a California court was in 2015. The case involved a 46-year-old woman who had her eggs fertilized and the embryos frozen after a cancer diagnosis. She and her husband signed an agreement at the time stating that the embryos would be destroyed if the couple divorced. When they did divorce, the woman changed her mind and asked the court to preserve the embryos as she desperately wanted to be a mother. The judge applied prevailing law, upheld the terms of the agreement and ordered the embryos to be destroyed.

Considering the future

It is not uncommon for people to rue decisions they made while in the grip of emotion. An attorney with experience in family and reproductive law may advise couples considering fertility preservation to think carefully before they sign agreements that will likely be binding if they choose to divorce. A lawyer could also urge couples to pay particular attention to provisions dealing with the storage, donation or destruction of frozen embryos.