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When a couple has completed their family through in vitro fertilization they typically have embryos cryopreserved. What happens to those frozen embryos when the couple subsequently divorces? That’s a question courts across the country have been faced with in recent years and Connecticut is the latest state to grapple with this issue. Do you award the embryos to the parent who wants them? Or, do you honor the terms of the agreement both parents signed agreeing to destroy the embryos in the event of a divorce.

Timothy Goodwin wants to use the frozen embryos created during his marriage to have another child; his ex-wife argues that she does not want to have any more children with her ex-husband and that the terms of the contract they signed, where they mutually agreed to discard the embryos in the event of divorce, should be upheld.

While such cases seem like they would be easy to decide based on the terms of the contracts couples signed, courts have had varying responses. The issue the courts seem to grapple with is whether the frozen embryos should be considered personal property, human beings, or something else. There is also the question of whether a former spouse should be granted the use of the other spouse’s genetic material to have a child against that spouse’s wishes, and after the marriage has dissolved.

Courts in New York and California have sided with the party wanting to uphold the legal agreement, while courts in Iowa and Massachusetts have ruled that the parties must mutually agree on the use of frozen embryos. Pennsylvania and Tennessee courts apply a balancing test which takes into account the interests of both parties.

As the use of IVF continues to rise, and there are more embryos cryopreserved, this issue is not likely to end soon.

If you are considering starting or adding to your family through surrogacy or egg, sperm or embryo donation, we can help you protect your rights and interests! Contact us today to learn more