Should Fading Fertility be Covered by Spousal Support?

The field of family law is dynamic. Although divorce remains the dissolution of legal relationship between two partners, the definition of assets, the marital estate and the standard of equitable distribution among parties continues to evolve.

A recent article in the New York Times describes a New Jersey divorce matter where counsel for a 38-year old woman is requesting her spouse include $20,000 as part of her divorce settlement. While a request for money is not unusual in a divorce matter, in this case the money is intended to pay to prepare, harvest and freeze her ova, or egg cells, for use at a later date.

Points of the argument for the woman include:

  • The expectation that the couple would have children during their marriage
  • Repeated, but failed, attempts at assisted reproduction during the marriage
  • Attempts at childbearing were part of the marital lifestyle, and those efforts should be preserved post-divorce

In this case, the couple decided to divorce after repeated attempts at becoming pregnant failed. Besides childlessness, unfortunate side effects of failed cycles of assisted reproduction are grief, stress, financial and emotional exhaustion.

The prospect of including spousal support for lost or fading fertility is problematic at best. In this case, the payment is intended to preserve and protect her genetic material, not his. How does a court deal with innate reproductive potential, of either spouse, as a marital asset or quality that should be preserved or otherwise paid for if a marriage fails?

Reproductive rights and capabilities may yet become standard language in divorce settlements. For better or for worse is fast becoming for better or until compensated.

When you need experienced, aggressive divorce representation, contact my firm Bryan L. Salamone & Associates, P.C.

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