Advances in reproductive technology have allowed thousands of otherwise infertile couples to conceive children. While this technology is nothing short of miraculous for couples who are struggling with infertility, it can also cause legal and ethical problems if those same couples later divorce. When a couple divorces, who gets custody of frozen embryos and other products of conception?

When couples consider using reproductive assistance to conceive a child, they often only think of the good outcome—i.e., the creation of a child. However, many reproductive technologies require both partners or a donor to submit multiple samples of eggs or semen, which can then be frozen separately or combined together to create multiple embryos. Many couples who use in vitro fertilization create many embryos so that several can be implanted at once with some left over in case the couple needs to try again or if they want to have additional children later.

When a couple divorces, the fate of these embryos is often left up to the couple. The law has not fully caught up with technology, and there are very few legal precedents on the subject. One of the first major cases to deal with this issue occurred in Tacoma, Washington. In that case, a couple had two leftover frozen embryos created with the husband’s sperm and a donor egg. The husband wanted these embryos to be implanted into a volunteer surrogate, who would then place the resulting children up for adoption. The wife wanted to raise any children resulting from the embryos on her own. The couple’s egg donor also believed that the wife should have “custody” of the embryos.

Eventually, the Washington Supreme Court reviewed the couple’s in vitro fertilization contract and chose to follow the provision in the contract which called for the embryos to be destroyed after five years. Since five years had passed, the Supreme Court ordered the storage facility to thaw and dispose of the embryos.

Like this case, most divorces which involve frozen embryos or other products of conception will depend heavily on outside or third-party contracts. Unlike an actual child, most individuals cannot care for frozen embryos themselves. The embryos are delicate and must be stored in tightly controlled conditions to maintain their viability. As a result, these embryos are almost always stored in a third-party facility. Usually these facilities have couples sign a contract which will dictate who owns the embryos and who has the power to order their destruction.

The law currently treats frozen embryos as items of property and not as human beings. Despite beliefs about life beginning at conception, the courts have determined that it is simpler to deal with embryos this way rather than go through the processes relevant to child custody. As a result, contracts and agreements generally determine the fate of embryos.

In the event that there is no such contract regarding what will be done with extra embryos, the judge in the case will have the power to decide which party will own the embryos. This party can then usually do with them what he or she likes. When making such a decision, the judge will review the arguments of both parties, and make a decision which is fair and equitable under the circumstances.

Couples who are planning on pursuing in vitro fertilization or other assisted reproduction techniques should carefully plan for the future. A post-nuptial agreement may help couples make a plan that outlines what would happen to the embryos in case of a divorce.

At Pacific Northwest Family Law, our attorneys help couples create pre- and post-nuptial agreements that will give you peace of mind as you plan for the future. If you would like to discuss a plan about alternative reproduction, contact Pacific Northwest Family Law today and learn more about how we can help you. To schedule your initial consultation, contact our office today by calling 509-572-3700.