Berman & Asbel, LLP

Court to decide who owns embryos after divorce

As Pennsylvania residents may have heard, a couple that is divorced is embroiled in a controversy involving embryos that were frozen during their marriage and are disputing what should happen to the embryos. Resolution of this court case in California may have a bearing on future cases of this type involving embryos, their deposition and possibly affect other types of genetic material.

The controversy stems from a California couple's decision to have embryos frozen after their marriage. At the time, the wife found out she developed cancer and treatment might render her infertile. A consent agreement was signed by both parties instructing that if the couple divorced, the embryos would be destroyed. The wife survived the cancer and wishes to have a surrogate carry the embryo to term. The husband, who asked for a divorce several years earlier, contends the agreement they signed forbids the use of the embryos after divorce.

The wife argues that the embryos give her the chance to have a biological child, and this should be considered by the court. Her former spouse's attorney further contends she used the embryos during the divorce proceedings as a demand. A biomedical expert from Stanford commented on the case, saying that while the situation is delicate, this is generally seen as a legal contract. Parameters were agreed to before the process of fertilizing and storing the frozen embryos was done. Abiding by the contract when divorce occurs would be a condition that was agreed upon by the couple.

When a couple decides to make this type of an agreement before or during the marriage, having separate legal representation is important. Consulting with an attorney to draft documents that withstand disputes during or after a divorce can be prudent.

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