The decision to create multiple embryos is supported by sound medical practice in order to increase the couple’s chances of additional attempts at pregnancy.
However, it also undoubtedly creates a future disposition problem that most couples choose not to address prior to commencing the infertility treatment, unless required by the storage facility to do so . Gonzalez practices with Young, Berman, Karpf & Gonzalez, P. She is board certified in marital and family law since 1997 and a member of The Florida Bar Marital and Family Law Certification Committee.
Should it matter that at some point in time both parties desired to have children together and be parents as evidenced by the fact that they voluntarily engaged in creating the embryos in the first place?
Should the law allow and recognize that parties have a right to change their mind and withdraw their initial consent relating to disposition of the embryos?
Likewise, if couples choose to create frozen embryos through the use of ART, they should consider entering into a pre-frozen embryo agreement prior to the medical procedure, addressing what would occur to the frozen embryos in the event of divorce or other circumstances.
Despite having a statute on point, Florida law provides neither guidance nor resolution as to whether a party’s right not to procreate will outweigh the other party’s desire to procreate in the context of a divorce proceeding if there is no written agreement and the parties disagree on disposition of their frozen embryos. In 2005, there were 134,260 reported assisted reproductive technology (ART) Accordingly, the issue of parentage, or lack thereof, is clear. 742 provides that the “remaining eggs or sperm shall remain under the control of the party that provides the egg or sperm.” When couples engage in the everyday negotiation of a prenuptial agreement, the parties and their attorneys are required to anticipate a multitude of future “what ifs? Florida law further recognizes gestational surrogacy agreements as enforceable contracts. §742.17 requires a written agreement between the couple seeking infertility treatment and their physician “that provides the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.” It would follow then that such written agreements should be upheld and enforced by the court in the event of the couple’s divorce, despite an alleged change in circumstances by one of the parties from the time the agreement was first entered. ” and reconcile the agreed-upon outcome of support, property, and other issues arising from their union in the event of separation, divorce, or death. When the wife filed for divorce, she sought the right to donate the embryos and the husband sought to have them destroyed. Once again the theme that a party’s right not to procreate outweighs a party’s right to have more children appears to be a determining factor. The Tennessee Supreme Court ruled in favor of the husband, reasoning that a person’s right not to bear children outweighed the other person’s desire to have children under state and federal constitutional right to privacy. As this area of the law continues to develop, states such as West Virginia are currently considering legislation which would not only prohibit the destruction of the frozen embryos, but prohibit them from being moved outside the state. As of 2008, approximately 13-14 percent of reproductive-aged couples are affected by infertility. We can expect that these issues will become more common for courts to address in the future. Dhont, Infertility Patients’ Beliefs About Their Embryos and Their Disposition Preferences, Hum. Intended parents striving to have families and judges alike would benefit from legislative guidance to help resolve the difficult issue over disposition of unused frozen embryos in the event of divorce. Significantly, the court in Davis held that disputes relating to the disposition of frozen embryos should first be determined by the terms of the written agreement between the couple. Indiana reportedly had proposed legislation to approve adoption of abandoned frozen embryos and would make it a misdemeanor crime to destroy an abandoned embryos. Absent such agreement, the court must balance each party’s fundamental right to bear children or not bear children, and consideration of whether one party has other means available (outside of the frozen embryos) to do so. Colorado, Georgia, Montana, and West Virginia are struggling with the concept of the legal status of the frozen embryos between property and a living being. §742.13 (1) defines “assisted reproductive technology” as those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer. As of 2008 , USA Today reports there are approximately 500,000 frozen, stored embryos in the U. Often, the couple successfully uses some, but not all, of those frozen embryos to create the family they originally intended. 2008) (A child created as an embryo through IVF but implanted into the mother’s womb after the death of the father cannot inherit from the father under Arkansas intestacy laws as a surviving child.). She currently serves as an executive council member of The Florida Bar Family Law Section, is co-vice chair of the Legislation Committee, and co-chair of the Children Issues Committee.If they ultimately decide not to have more children, the last thing on the couple’s radar is when and how to dispose of the unused frozen embryos. This column is submitted on behalf of the Family Law Section, Scott Rubin, chair, Susan Savard and Laura Davis Smith, editors.