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Which Partner Gets Custody of Frozen Embryos in A Divorce?

October 18, 2016

This is part 2 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

Dr. Mimi Lee and Stephen Findley were a Bay Area couple who decided to freeze embryos created together when they discovered Dr. Lee had cancer. When the couple decided to divorce, a dispute arose between the two over whether Lee could use the embryos to have children with a surrogate.

The couple’s dispute revolved around two perspectives: first, Lee’s right to have children and second, the rationale that Findley can’t be forced to have children. In the end, the court ruled that Lee’s right to procreate didn’t give her the right to procreate with Findley.

The couple had signed a consent agreement with the fertility clinic that the embryos would be destroyed if the couple were to divorce. Another high profile couple who signed an agreement with a clinic was Sofia Vergara and Nick Loeb. In this case it was the husband who wanted to retain the embryos. The agreement here called for the embryos not to be released unless and until both parties could agree on it. Vergara continued to object, a case wasn’t brought and the agreement stood. (Source: FindLaw)

It’s important to remember that in the majority of cases of disputes over frozen embryos, the courts have favored the objecting party. This is partly because the courts are likely to uphold the terms of the original contract with the fertility clinic, and partly because there is currently no way of absolving the other parent from parental obligations as if they were a sperm or egg donor. To avoid future complication and ambiguity, the other spouse is spared from the possibility of becoming a parent with their ex-spouse by eliminating this possibility, ie destroying the embryos the couple had created together. At Boileau Conflict Solutions we will sit down with you to review these important legal issues along with any other concerns you may have. We specialize in assisting couples who may be career-focused and working to integrate career, family and relationships into busy lives.

Fertility clinic consent forms have terms that may not suit both partners, so it’s important to be as clear about your feelings on future children as early as possible. When complicated emotional issues like this are involved, a Prenuptial agreement can help to bring clarity to the situation. It can compel couples to review the legal issues surrounding their choices and the impact of these future choices. And it may allow one of the parties to come to an early acceptance that their right to have children will likely be outweighed by their partner’s decision not to be a parent should they divorce in the future.

Clarity

If you have concerns surrounding the clarity of your conversations and agreements about assisted reproduction, Boileau Conflict Solutions can help. We have experience dealing with these issues and use the best approaches to help work through complex emotional, financial and legal concerns towards clear, mutually respectful agreements. Please contact us today to see how we can help.

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