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Custody of Frozen Embryos

Custody battles are among the most stressful, emotional disputes between two individuals. Sometimes one spouse is seeking sole custody seeking to exclude the other parent from making any decisions for the child. Other times there is a joint parenting arrangement, but often the parents still struggle to maintain civility when it comes to major life events and decisions. But what happens when that child has not yet been born? What happens when a couple has come together to create an embryo which is then cryogenically frozen prior to being implanted in a surrogate mother? When that couple divorces, what happens to the embryo?

It is reasonably well settled law that a father in an in-vitro fertilization (IVF) procedure cannot waive his paternity status if he is married to the intended mother. However, where the biological father is a stranger to the intended mother parental rights can be waived. A problem arises, however, when the biological father and intended mother are married, have an embryo frozen, and then divorce prior to implanting the embryo. While it is entirely foreseeable that couples who have a small group of frozen embryos will divorce prior to the completion of the IVF process, the IVF process and the divorce proceedings are greatly complicated where one spouse wishes to continue with the IVF process while the other spouse wishes to terminate the embryos. Who should be granted “custody” of the frozen embryos.

The question of custody of the embryos is not an easy one as the law treats the frozen embryos as a unique subject, not a person but not quite property. As such, the idea of including the embryo in an award of equitable distribution is often out of the question. Instead, the courts will make a determination on the future of the embryos separate and apart from any issues ancillary to a divorce.

Traditionally, the courts have favored an agreement between the parties in making decisions about the future of a frozen embryo. In the 1998 case of Kass v. Kass, the court stated that an agreement between the parties should control the decisions about the future of the frozen embryos. In Kass, the parties had frozen embryos in an attempt at an IVF procedure. Prior to implantation, the parties divorced. The wife wished to have the embryos implanted in her uterus, while the husband wished to terminate the embryos as he no longer desired to become a parent. The court upheld the parties agreement which stated, in pertinent part:

We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law.1

However, even where an agreement exists between the parties, the court must weigh the constitutional rights of both parties; the spouse who wishes to continue with the IVF process against the spouse who no longer wishes to become a parent.

In a Massachusetts case, where the court disregarded the agreement between the parties due to its ambiguity, the court held:

Even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen pre-embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement.2

The New Jersey court in J.B. v. M.B. stated that “regardless of any agreement signed by the parties, frozen embryos cannot be implanted unless both parties consent at the time of implantation.” The court further stated “ordinarily the party choosing not to become a biological parent will prevail”.3

The courts decisions in these matters are a direct result of the decisions of the Supreme Court regarding an individual’s right to privacy. As the Supreme Court consistently holds that the right to privacy is greater than the rights of a nonviable fetus, the state courts will likely consistently hold that the individual’s right to privacy will outweigh the rights of a frozen embryo. More simply stated; the privacy rights of a spouse who no longer wishes to become a parent will outweigh the rights of the spouse who wishes to continue an IVF procedure.

At Bryan L. Salamone & Associates, P.C., we have experience handling matters involving IVF procedures in complex matrimonial situations. We strive to maintain our position at the forefront of this evolving area of law to ensure that we can provide the most favorable results for our clients. Contact us for a free consultation regarding your IVF matter. Whether you need assistance reviewing an IVF agreement or fighting for your rights regarding an IVF procedure during a divorce, we have the skill and experience to guide you through this remarkably complex process and obtain optimal results.




1 91 N.Y.2d 554, 673 N.Y.S.2d 350 (1998)

2 431 Mass. 150, 725 N.E.2d 1051 (2000)

3 170 N.J. 9, 783 A.2d 707 (2001)

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