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Who Wins in an Embryo Custody Battle?

By Stephanie Rabiner, Esq. | Last updated on

As the age of first child becomes later and later, more couples are turning to invitro fertilization. Others -- including men -- face medical treatment and choose to freeze embryos as a precaution. But as the popularity of the technology grows, so do the associated legal problems.

What happens during a divorce? If the parties can't decide what to do, who will win custody of the embryo?

It depends.

Just as you have a right to procreate, you have a right to avoid procreation. For this reason, some courts find in favor of the party who does not want to use the frozen embryo. It's difficult to force a non-consenting adult to take on 18 years of financial and emotional responsibility.

Still, other courts will consider whether one of the parties can no longer produce viable eggs or sperm. Such a situation may outweigh the consent of the opposing party.

You never know what a court will do, which is why you should decide who gets custody of the embryo beforehand. You may love one another now, but that might change.

Both partners should talk about the following:

  • What happens to the embryo if one party dies?
  • Who will get the embryo if one party can no longer conceive at the time of divorce?
  • Should the embryos be donated and if so, for what or to whom?
  • Should the embryos be destroyed upon divorce?

When you've figured out who gets custody of the embryos in the event of a divorce, talk to an attorney. Having your decisions memorialized in writing will ensure that both parties are protected.

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