This is part 3 of a 3 part series on assisted reproductive technology and divorce in California. Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional. Please click here to set up a consultation with experienced family law mediators Boileau Conflict Solutions.
We’ve seen how disputes about frozen embryos can easily get complex and emotionally delicate (See Part 1 and Part 2 in this series). No one wants to imagine they will divorce but when there are high emotional or financial stakes, any unresolved issues can cause conflict later. Assisted reproduction can even involve more than just the divorcing couple. Especially if a surrogate is someone known to the couple, having a child can involve several parties interested in the birth or upbringing of a child. At Boileau Conflict Solutions we have experience working with families and couples dealing with unique issues related to assisted reproduction.
Signing on the Dotted Line
When you sign a consent form with an assissted reproduction facility, are you signing an agreement with the facility or with your partner? This is a subtle, but important distinction. In the case of Dr. Mimi Lee and Stephen Findley, Lee argued that she hadn’t signed an agreement with Findley, but that the couple had signed an agreement with the facility.
You may imagine that your main obstacle would be your former partner’s wishes, but California law also outlaws the use of ‘”sperm, ova, or embryos in assisted reproduction technology” without the written consent of their providers.’ (Source: FindLaw) The second hurdle Dr. Lee could have faced was the facility refusing to release the frozen embryos.
A divorce dispute about frozen embryos has to cover so much more than the disputes over property you would expect from divorce. In the beginning, there was a contract made and that contract is protected. It’s important to have an attorney review your contract with your fertility clinic and to enter into any agreement with your spouse with the consciousness of what your choices mean in the future legally.
Leftover Embryos and Ambiguity
The San Francisco Chronicle reports that there are more than 600,000 frozen embryos in the US, and many of these are embryos left over from successful treatment. (Source: Findlaw) There has been an explosion in the use of this technology in California in particular.
Sometimes, even after a couple has children, disputes revolve around what happens to leftover embryos, as in the case of a Tacoma, Washington couple who were in conflict over whether the children should later be adopted or whether the wife would get to raise them (in this case the egg donor was also involved). Just because reproduction has been successful, it doesn’t rule out the possibility for future disputes.
What Should Be Discussed
Amongst many potential issues, here are some key points that should be on the table when working out a PreNuptial or Post-Nuptial agreement, or when carefully reviewing and understanding the terms of an agreement with an assisted reproductive technology facility:
- What will happen to the embryos on the death of one party?
- What will happen to the embryos upon divorce?
- Should the embryos be destroyed or donated under certain circumstances?
- If the embryos are donated, who or what will they be donated to?
- If one party can no longer conceive at divorce, who gets the embryos?
- If there are any questions that are unique to the couple that may cause problems in the future, they should be broached as early as possible.
Experts in Conflict Resolution
At Boileau Conflict Solutions, we are experts in resolving complex and delicate financial and emotional situations between couple. We believe in making good agreements, and making them as early as possible. We can help you craft your prenup or postnup. Alternatively, we can use our expertise in working in complex areas of family law to help resolve disputes that have already arisen. Please contact us today to see how we can help.
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