People or property: status of unborn children uncertain in divorce

People or property: status of unborn children uncertain in divorce

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SAN DIEGO, September 19, 2013 –  Child custody and child support are among the most challenging issues a divorcing couple and their attorneys confront. Now it seems in another example of reproductive science getting way ahead of the law, these legal issues may extend to children who are not yet born.

What happens to embryos that a couple freezes during a marriage for later implantation after they decide to divorce? How does the court resolve a disagreement on what to do with those unborn, unimplanted embryos, all of which have the potential to become living children?

Previously, frozen embryos were considered property, not human beings. Laws governing property division applied. But several cases including one decided in Maryland earlier this year and one now pending in New Jersey are struggling with how to define children versus property. Judges have to decide whether to apply custody laws or property laws to govern their decisions.

A 38-year-old New Jersey woman who is divorcing her husband of eight years has asked him to pay $20,000 as part of her divorce settlement to cover the cost of freezing her eggs including medication and storage. She argues she expected to start a family during the marriage; due to the divorce, she says her window of fertility is closing and she wants to preserve the opportunity to become a parent. Her fertility is being treated like an asset, a piece of property like the family home.

The woman is not considering using the soon-to-be-ex husband’s sperm, since several in vitro fertility attempts during the marriage failed. However the case is decided, the husband will not be on the hook for child support as long as they are formally divorced before any children are born.

It’s much trickier when fertilized, frozen embryos already exist.

Are embryos people or property?

In the Maryland case, a woman was awarded custody of nine frozen embroys she created during her marriage. She and her husband were divorced in 2012. The father wanted the embryos destroyed. The couple signed a legal document with the fertility center at the time that permitted the woman to retain custody of the embryos in the case of a split.

The prospective father’s lawyers said the agreement took away the man’s right to make a decision whether or not he wanted to be a father again. The father was also worried about his ex-wife becoming a parent again, because she was deemed an unfit parent and he was awarded sole custody of the couple’s three year old daugther, who was conceived using an embryo from the same group being fought over.

Will the father become responsible for child support against his will? Even if the mother waives her right to support, if she ends up receiving public assistance from the state, the state could sue the father for support. This is what happened in the case of a Kansas sperm donor, William Marotta, whose parental rights were waived by agreement with the biological mother. It didn’t matter to the state; he is the biological parent and it wanted its money back. The case is still making its way through the Kansas court system, 10 months and counting. Imagine what this is costing the parties involved in legal fees.

Reproductive science is racing ahead of the law

These two cases are just the tip of the family law iceberg. Should frozen embryos be destroyed if one of the biological donors does not want to become a parent?  Should they remain stored for later implantation by the biological mother, or into another woman through donation? What if that woman is the ex-husband’s new wife?

Should the embryos be made available for “adoption” by another couple? Can they be disposed of by contract between the spouses? What if they are used to give birth to a child after one of the biological parents is deceased, a postumous birth? In states where embryos have the status of persons and not property, the cases become extremely complex.

The ethical arguments involved are difficult and far-reaching. Some of the legal precedents governing abortion may also apply in these cases. Women can opt for abortions within the law. Should a man be forced into fatherhood against his will?

Parental rights remain in flux as long as reproductive science stays ahead of the law. A couple may want to address their expectations about parenthood before getting married, in the same way the couple may choose to adddress financial and legal issues proactively in a prenuptial agreement.

It will be increasingly important for family law attorneys to be educated about fertility, reproductive medicine and reproduction as an asset of the marriage. To many people, their fertility and their ability to become a parent is priceless and they will want to preserve and protect it. Then it becomes up to the lawyers and the court to figure out what the cost of “priceless” really is.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.


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