In recent years there’s certainly been no shortage of married couples who, in the effort to conceive, have chosen to create their embryos with a little extra help from a new medical procedure. The process of freezing embryos sees couples work with a clinic and go through several rounds of in vitro fertilization (IVF), which typically results in an abundance of embryos being created.

Human embryo cryopreservation clinics freeze and preserve leftover embryos in case their clients wish to have another child in the future. Of course, roughly half of all marriages fail, and as part of any divorce settlement, marital assets are divvied up. It can prove to be a pretty tricky legal issue to determine who gets these leftover fertilized embryos in a divorce scenario.

New Legal Issue

Being a relatively recent development in reproductive technology, freezing embryos has also created some new and difficult legal issues. When a couple begins the IVF process they’re usually only thinking about positive outcomes. They’re focused on seeing their dream of starting a family realized.

Consequently, couples seldom discuss the potential legal implications associated with IVF. At this stage in their romance few young couples are concerned about the possibility of divorce somewhere down the road. Of course, should divorce wind up being their reality, many such couples find themselves ill-prepared to deal with the difficult legal issues surrounding their as yet unused fertilized eggs.

State Requirements

How the legalities are addressed in these situations varies from state to state. Many follow California’s example and utilize something known as a balancing test. These tests help determine whether the embryos should be saved or destroyed.

Some state courts have ruled that a divorced person’s right not to procreate is more important than their partner’s right to procreate. Meanwhile, other courts in other states have ruled just the opposite, determining that when a woman is unable to conceive naturally her right to become pregnant is stronger than her ex-husband’s legal argument against it.

Little Protection

There are really no laws on the books that directly address the issue of embryos in a divorce situation. There is little case law available to provide guidance, leaving many couples and their lawyers in uncharted legal waters. It’s becoming enough of an issue that some facilities are insisting that prior to participating in IVF, a document determining ownership of any leftover embryos must be signed.

This is a big issue in many states still waiting to see if these types of agreements are legally enforceable. It doesn’t matter how carefully the documents were drafted — until an embryo is implanted in the mother, a couple has the right to change their minds concerning the disposition of the embryos they’ve created together.

Are Embryos And Children Considered Equal Under The Law?

Courts all over the country have struggled to answer this question. Are embryos property that should be divided like any other asset, or are they living beings who should be treated as children? And if they do have the same legal rights as children, should the division of embryos be considered a custody action?

Most states consider embryos as property belonging to both parents, but this changes when a single woman is trying to have a child using IVF technology; sperm donors have no right to the stored embryos.

Joint Control

There are no specific laws designed to provide couples the ability to jointly control the embryos they’ve created. Many legal experts argue that the existing laws don’t consider the side effects or health issues women risk during the process of harvesting her eggs. Plus, very often, preserved embryos represent a woman’s last and only opportunity to have children.

Couples Change Their Minds

The research clearly illustrates that people regularly change their minds when it comes to how their surplus embryos should be handled. This typically happens after a child has been born through the IVF process. For instance, one spouse will decide they definitely don’t want their genetic material used to conceive should the couple eventually separate.

Prior To IVF

Marital divorce can be a devastating experience. In addition to the heavy emotional toll that comes with it, there are already numerous legal issues to deal with in a divorce — and addressing the distribution of embryos only increases the stress.

Many courts hold the position that neither spouse has the power to make these decisions alone. Some legal experts recommend that couples considering undergoing the IVF process obtain legal advice to determine in advance just how the situation will be dealt with in the event of divorce.

Once a woman has successfully been impregnated there will probably be several embryos left over, each with the potential to become a child. Both parties may want these embryos for a future family, an increasingly frequent conundrum that typically leads to legal and moral complications. This is clearly an untenable situation with a growing and progressively dire need of correction.

As the popularity and number of people freezing their eggs and embryos continue to increase, the more urgent the need for a definitive guide to the legal issues surrounding the practice. However, until a high court issues a ruling and legal precedents are finally set, the legal status of extra embryos will continue to vary significantly from state to state.

About the Author: Christopher Barry is a freelance writer with over twenty years experience covering lifestyle news. His work has been featured in publications such as The National Post, Vice and Maxim.