My spouse and I underwent In Vitro Fertilization. We are getting divorced. What Happens to the Embryos From a Legal Standpoint?

Laboratory-300x200Many couples dream of having a child to add to the love and home that they are starting to build. In some heart breaking instances, couples experience trouble conceiving a child, and seek out medical help to become pregnant and look to In Vitro Fertilization (IVF) as a way to make that dream a reality.   When couples use IVF, they typically create several viable embryos at the time, which are then stored for later use. Fortunately, for many, IVF procedures bring success and before long, the couple welcomes a beautiful baby and the joys of parenthood. In some instances, however, after IVF has been successful, the other viable embryos remain cryogenically frozen, and due to breakdowns within the marriage, an issue arises during Florida divorce proceedings about what to do about the children who have not yet been born.

When children have been born, the court balances a multitude of factors in determining how timesharing with children should be divided between parents.  The most important of these factors is the “best interest of the child.”  This issue become more difficult when considering how to deal with children who are yet to be born.  Florida is one of the few states to have actually dealt with this emerging issue as more and more couples are turning to IVF.   That being said, every case is different, so it is important to discuss your case with an experienced family law attorney who can help you to navigate this issue and what the evolving law states on the issue.

In Florida, when a couple starts IVF, each person signs a contract between each other, and the treating physician, that should address what should happen to the stored genetic material: sperm, egg, and pre-embryos upon death or divorce.   Obviously, when couples are starting to take the very big step of IVF, then they should consider the “what if” seriously, but it is a daunting task, as emotions are high and anticipation of a “dream come true” is so close.  These agreements have been determined by the court to be legally binding, so discussing this issue with an attorney may lead to reducing conflict and turmoil later.

Couples who are divorcing find themselves in a more difficult situation when there is no written agreement, or the agreement fails to consider the possibility of death or divorce. Usually, whichever spouse has the stored genetic material controls what happens.  But when a couple is storing shared genetic material, as in the case of stored pre-embryos that share the genetics of both parents,  the decision regarding what to do when a couple divorces needs to made jointly. But again, as every case presents new and different facts, it is important to discuss these issues with an experienced family law attorney who can represent you in this area of law.

Lastly, another way this issue can present, is when you are drafting a will, when a couple has stored pre-embryos or shared genetic material, and one member dies before implantation has been accomplished, the resulting child is not considered to be an heir of the deceased spouse’s estate. If it is your intention that your spouse could have a child after your death, and you would provide for that child, that must be clearly spelled out in your will, otherwise, the court will not find that this was a wish that you had after you die.

As this is a new area of law and a constantly developing area of science, it is important to contact an attorney to discuss what impact your decisions regarding IVF has on your legal rights, as this area is sure to be changing and evolving to address these issues.

The attorneys at Wood, Atter & Wolf, P.A. have been working with and representing clients in family law matters since 1957.  The law firm of Wood, Atter & Wolf, P.A. firmly believes in providing each client with legal advice and representation so that the firm is On Your Side – At Your Side.  The book titled – Florida Family Law – Enforcing Your Legal Rights & Rebuilding Your Life has chapters on Divorce, Temporary Needs, Division of Marital Property, Division of Retirement, Alimony, Time Sharing (Custody and Visitation), Parenting Plans, Child Support, and Enforcement.  You can get this book for free at Florida Family Law Book.

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