Who Gets Custody of Embryos?

Reproductive technology has helped many parents achieve pregnancies that may have been impossible previously. As with any innovation, however, rapid scientific advancements bring new challenges. 

Maybe you thought you didn't need to worry about custody issues in your divorce as you and your soon-to-be ex haven't had kids yet. Or maybe you thought all your custody issues were taken care of with your current kids.

But if you and your ex underwent in vitro fertilization (IVF) together, you might need to address one more issue. The following is an overview of some issues divorcing couples face regarding the custody and use of embryos.

Ownership and Custody of Embryos in the Event of Divorce

There are new ethical and legal dilemmas, some of which are not yet covered by state law.

Twenty years ago, judges and attorneys may not have guessed they would face issues about the custody of frozen genetic material. Frozen embryos have created many questions about parental rights and child custody. The issue of who gets custody of embryos in the event of a breakup is complex and contentious. In most cases, the case will look to the original consent agreement signed by the couples when they created the embryos to determine ownership and custody. Courts may also consider individual circumstances. For example, it could be a factor if the potential mother has cancer and will not be able to conceive without the use of the embryos.

However, new laws and legal challenges are emerging, making this an evolving area of law. It is important to consult with a lawyer to understand your rights and options if you face a custody dispute involving embryos. Child support and other factors may come into play in these cases.

Getting Custody of the Embryos: Real-Life Cases

Take the case of a Tacoma, Washington couple who underwent IVF. The couple had the donor's eggs and the husband's sperm left over after a successful birth. The couple had these frozen with the intention they would fertilize and implant them later. The couple later divorced. The husband then wanted to place the children born from the embryos up for adoption.

The wife appealed the court's ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say and sided with the wife. The court of appeals judge eventually awarded custody of the frozen embryos to the husband. The wife appealed that decision to the Supreme Court of Washington. In the end, the court awarded neither custody.

A similar case in Illinois debated the custody of the couple's frozen embryos. In 1999, the court ordered they remain frozen until the court sorted out the constitutional questions involved. Amid the divorce proceedings, the husband asked the court to grant an order. The order requested the wife not to implant the embryos and attempt pregnancy. The court issued the order. The court also ruled that the custody of the embryos would be part of the divorce trial.

More recently, actress Sofia Vergara and her ex-husband, Nick Loeb, went to court over the use of frozen pre-embryos. The divorcing couple previously agreed to get written consent from the other before using the pre-embryos. When Loeb wanted to implant the embryos into a surrogate without Vergara's consent, the court sided with Vergara. The court blocked Loeb from using the embryos without her consent in accordance with their former agreement.

New Technology Gives Rise to New Legal Issues

Custody cases involving embryos have been the subject of court decisions and case law in several states, including Arizona and New York. These cases show the thorny legal issues that may come from using assisted reproductive technology. This further complicates an already stressful situation like divorce. Couples using this technology usually think of the positive outcomes. They are considering building their family with their spouse, not getting a divorce. The topic of custody of the embryos after a breakup rarely crosses their minds.

But the reality is that not all marriages last forever. Couples would be well advised to discuss the legal impact of their decisions before the fact. An experienced family law attorney can help provide legal advice. If, for some reason, "happily ever after" doesn't happen, at least they will be well prepared to face the legal challenges ahead.

Who Gets Custody of the Embryos? An Attorney Can Help Sort It All Out

Figuring out child custody issues with existing children is hard enough. The situation involving potential future children can be hard, too. Custody disputes are complicated and typically elicit heightened emotions from the divorcing couple.

It is best to work with a custody attorney to secure your legal rights in the event of divorce. Married couples looking to start their families don't want to think about divorce, but this can help avoid several headaches.

Get peace of mind today by meeting with an experienced child custody lawyer.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

Find a local attorney

Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

Start Planning