With advances in technology in medical science, more and more people are finding themselves able and willing to test the limits of science and engage in atypical procreative behavior. One of these atypical methods for having a child involves utilizing human embryos to become pregnant. I realize that for most people reading this blog post, the subject of frozen embryos in pregnancy is not relevant to you. Other than the costs associated with the process or any other factors that make it, you cannot engage in anything that happened to do with frozen embryos. However, for one reason or another, some of you may become involved with this process, and as a result, I would like to share some information from a legal perspective about it.
I will mention at the very beginning of today's blog post that, like in all areas of the law, this subject is subject to change as courts issue rulings and more information Is made available to families in the legal system alike. So, what we talk about today may not be relevant in a year or two, but I believe it will be something practical for us to discuss for now. In the future, if you have any questions about the material that we have discussed, I would recommend that you contact the power-law office. We can arrange for a free-of-charge consultation between you and one of our experienced family law attorneys.
Growing your family means different things for different people.
Everyone reading this blog post is aware of how the vast majority of families grow. Procreation Is a subject regarding biology, just as it is about familial relations, morals, tradition, and a host of other subjects. We are not here to discuss any of these subjects, but I would like to provide you with some detail about how in vitro fertilization and other scientific technologies have aided families in growing themselves by untraditional means.
The reasons why different families engage in scientific means to grow their families can vary. Many times, two people may be unable to conceive a child by natural means due to a medical issue. A couple may not wish to go about childbirth and instead wish to involve a surrogate mother in some circumstances. Other times same-sex couples can engage in Assisted means to reproduce due to their inability to do so. Whatever your family's circumstances are, I believe that the information we discussed today will be relevant for many families.
From what I can gather about the in vitro fertilization process, several embryos can be created where couples can utilize one time and then freeze the remaining embryos. These frozen embryos are stored in a sterile environment and can be utilized in the future if a pregnancy does not result in the first attempt at implantation. In a legal context, there is a question about possession and ownership of these embryos. This doesn't even begin to scratch the surface of whether or not you and your spouse consider these embryos to be human life.
Typically, doctors’ offices will require you and your spouse to complete paperwork at the beginning of the process whereby you designate what that office can do with the remaining frozen embryos if you and your spouse get a divorce. While this would seem to be the end of that discussion about conservatorships or possession rights over their remaining embryos, spouses go to court with some frequency on this subject in every state in the country.
As I'm sure you could imagine, this state of these cases is very much up in the air due to how novel and new they are. It is only and relatively recent years that this subject could even be discussed on any scale due to our medical community's cost and scientific limitations. However, as advancements in science tend to do, the cost of these procedures has decreased, making it more affordable and practical for families trying to expand their families to engage in these sorts of methods.
It is relatively easy to conceive of a hypothetical situation where you and your husband engage in the in Vitro fertilization process and are at first unsuccessful. However, you can try again for a second or third attempt to conceive your child one of your files for divorce from the other. If one or both of you are nearing the end of your child's procreative years, the subject of those embryos may both be a financial and familial concern for the divorce. If you have frozen embryos at a clinic, you would need to have a family law judge determine who owns those embryos.
There is case law in existence that would defer to the agreement made with that particular doctor's office. This means that whatever you and your spouse decided as far as “ownership” of the embryos before your divorce would be in effect throughout your case. If you and your spouse agreed that you would be able to keep the embryos in the event of a divorce, you would be able to attempt implantation in the future. However, if you all agreed with the clinic that the embryos would belong to your husband, he could utilize them in the future, but you could not.
A key part of this discussion, based on Judicial rulings from other states, is the mother-to-be's age. If you are a woman Who is nearing the point where it is not viable or safe for you to have a child and you run into a situation involving frozen embryos, I believe it is more likely than not that a court would allow you to keep the embryos in the divorce despite any agreement made before your divorce with a doctor's office. Courts view these circumstances as ones where a mother may not have many opportunities left to have a child and that these embryos may represent the best show hope she has to do so.
An example from another state regarding In-vitro fertilization
Here is an example of how another state’s Supreme Court ruled on a subject related to in vitro fertilization. In this case, a married couple had already utilized the in vitro fertilization process to conceive and give birth to three children. After these three children had already been born, there were still 6 embryos stored at a fertility clinic that was viable to be used in the future. Before the couple could conclude how to utilize these embryos, a divorce was filed.
Let's examine what the agreement with the fertility clinic had to say about who would end up with the embryos in the event of a divorce. In this case, that agreement actually did not specify what should be done with the embryos in the event of a divorce. This added to the complex nature of this case, and the court could not rely upon the agreement at all.
The wife held a reasonable position that she wanted to keep the embryos because she was getting older and still wanted to have children in the future. On the other hand, the husband did not wish to preserve the embryos and argued that by keeping the embryos viable, you could essentially be forced to have children he did not want to have. Beyond the embryos themselves, we can see that this case involves issues regarding an adult person's ability to make decisions for themselves about whether or not they want to have a child in the future. It is easy enough, relatively speaking, to avoid having a child by traditional mean-spirited artificial means of conceiving a child creates issues that no generation before ours would have been able to relate to.
What did the court end up doing? It was asked to decide a difficult question regarding privacy in that family and balancing the desires of two people that wanted two different things for their families. The Supreme Court of that state ended up ruling that the case should be sent back to the original family court that heard the case in the first place.
The importance of having an experienced family law attorney by your side
when I start to see terms used like unsettled, up in the air, questionable, unprecedented and changing, it makes me want to have something solid and dependable by your side. In the context of a challenging family law scenario such as the one we have been discussing today, it makes a great deal of sense for you to have an experienced family law attorney by your side to help guide you through this process. A divorce is a difficult circumstance in and of itself. A divorce that involves frozen embryos and questions regarding custody of them is even more difficult.
This is why I recommend that you interview multiple family law attorneys before ultimately selecting the right one for you. I recommend this to any person going through a divorce, especially those of you who have complicated factual matters involved in your case, such as the ones we described here in our blog post today. Do not assume that any attorney will be able to take on the issues of your case and succeed in representing you. Also, it would help if you did not assume that you and your spouse have an agreement through a doctor's office; this will win the day for you in court. Again, this area of the law is very much unsettled and is quite novel. There are no longstanding precedents because this is not a longstanding issue.
When you interview attorneys, you should begin by discussing any circumstances you have regarding frozen embryos. If all you do is spend the interview discussing this issue, that will be fine. Do not leave that interview or consultation without discussing the topic, getting an opinion from that attorney on how it should be handled, and developing a basic game plan with them before the case begins. If you do not feel like your attorney is competent to handle this topic or is incapable of thinking creatively or strategically, then you should move on to the next attorney.
In the meantime, a good idea might be to speak to your spouse or your fiancé, depending on where your relationship is, and talk about whether a prenuptial or post-marital agreement regarding the issue of custody on these embryos may be something you can discuss. Pre-marital or post-marital agreements are usually held up in court if the agreement is not unconscionable or does not limit the amount of child support or spousal maintenance that could be paid after a divorce. If you all can agree to two custody or possession of these embryos before the time of divorce, it would seem to me that this would solve the biggest issue you may have during your case. Again, an experienced family law attorney can help guide you through drafting a premarital or post-marital agreement.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. A free-of-charge consultation is available for you six days a week via video, over the phone, or in person. We take a great deal of pride in serving our community and can handle and represent you in any manner related to Texas family law. Thank you for joining us today in our blog, and we hope to see you again in blogs to come.