By FindLaw Staff | Legally reviewed by Nicole Prebeck, Esq. | Last updated November 18, 2022
Maybe you thought didn't need to worry about custody issues in your divorce because you and your soon-to-be ex haven't had kids yet. Or you thought all your custody issues were taken care of with the kids you have.
But if you and your ex underwent in vitro fertilization (IVF) together, you might have one more issue to address.
The following is an overview of just some of the issues divorcing couples face about the custody and use of the embryos.
Reproductive technology has helped many parents achieve pregnancies that may have been impossible. As with any innovation, however, rapid scientific advancements bring new challenges. Ethical and legal dilemmas are being posed, 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.
Take the case of a Tacoma, Washington couple who underwent IVF. The couple had the donor's eggs and the husband's sperm leftover after a successful birth. The couple had these frozen with the intention they would be fertilized and implanted 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, neither was awarded 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.
In the midst of 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. Loeb was blocked from using the embryos without her consent, in accordance with their former agreement.
These cases show the thorny legal issues that may come from the use of assisted reproductive technology. This further complicates an already stressful situation like divorce. Couples using this technology usually think of the positive outcomes. They are thinking of 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 helpful 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.
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. Get peace of mind today by meeting with an experienced child custody lawyer.
Contact a qualified child custody attorney to make sure your rights are protected.
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