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Custody of Embryos After Divorce: Legal Insights and Real Stories

On Behalf of | Aug 18, 2022 | Fertility Assistance |

California couples who have fertility issues often choose in vitro fertilization (IVF) to start families. However, if a couple ends up getting a divorce and has unused embryos left over, things might be complex. Who gets custody of those embryos? There are some real stories about this very issue that might give insight into the answer to that question.

Resolving Embryo Custody Disputes

If you and your partner are contemplating utilizing Assisted Reproductive Technology (ART) for conceiving a child, it is crucial to establish a written agreement governing the utilization of any embryos formed. This agreement should tackle the allocation of responsibility for the embryos in case the relationship ends, and it should also outline the course of action if one partner wishes to retain the embryos while the other does not.

When engaging a gestational carrier, it’s imperative to ensure she signs an agreement stipulating the return of embryos to you in case of a disagreement. Similarly, your surrogacy contract should incorporate a clause specifying embryo custody arrangements for any resulting children in case of a dispute. The same principle holds for situations involving egg or sperm donors.

Maintaining a record of all communications between you and your embryo donors or surrogates is also pivotal. In the event of an embryo custody dispute, these communications can serve as valuable evidence.
Lastly, seeking legal counsel is always a prudent step if you are contemplating using embryos to build your family. A seasoned attorney can assist you in crafting an agreement that safeguards your interests should a dispute arise.

Donated embryos

One couple had a dilemma with the wife learning that she had breast cancer shortly before getting married. She had gone through egg retrieval and had embryos created using her husband’s sperm in the hopes of someday having children after chemotherapy made it unlikely that she could conceive naturally.

The marriage came to an end, and the husband claimed that he only married his wife so that she could have health insurance while battling cancer. The wife was shocked and saddened by the revelation and requested custody of the embryos. The husband didn’t want children, and the judge decided that the unused embryos should be donated.

Destroyed embryos

Another couple who divorced had a contentious disagreement over their unused embryos. The wife also had cancer and was told she was infertile as a result of chemotherapy treatments. The husband didn’t want to be forced to be involved in a child’s life if any of the embryos were used. The judge in the case ended up ordering the embryos to be destroyed.

Custody of children resulting from embryos

Another divorced couple who had embryos argued over what should happen to those embryos. The husband wanted to have any children resulting from implanted embryos to be put up for adoption outside of their state. The wife, however, wanted to have a child from the embryos and raise them herself. The judge awarded custody of the embryos to the husband.

California’s Legal Landscape for Embryo Custody

In the realm of California law, conflicts concerning embryo custody are treated akin to standard child custody disputes. The court’s decision is influenced by an array of factors, encompassing the desires of all involved parties and the ultimate welfare of the children. Generally, courts lean towards maintaining sibling unity whenever feasible. Thus, if both parties aspire to retain the embryos, the court is inclined to rule in their favor.

Custody of embryos adds a layer of intricacy to divorce, especially when infertility compounds the challenges. These real stories underscore the significance of proactive legal measures and open communication in safeguarding intentions and navigating life’s unpredictable turns.