Waldlaw Blog

Wednesday, January 09, 2013

What Happens to Left-Over Embryos?

Yet another court -- this time in Maryland -- has been called upon to decide what should become of frozen embryos remaining after the divorce of the couple who made them.

Typically, these cases look like this:  a husband and wife experiencing fertility issues have created embryos through an in vitro fertilization procedure.  The embryos are cryopreserved and stored for future use.  Then the couple splits up.  One of them wants to go forward with using the embryos to conceive a child; the other wants the embryos destroyed.

Often, use of the embryos is the final opportunity for the infertile husband or wife to have a child that is biologically related to him or her.  Since the embryos were made, the wife may have become too old to produce viable eggs; or either husband or wife may have had their fertility destroyed by chemotherapy or other medical procedures.  If the embryos are destroyed, a potential father or mother will forever lose her/his chance to become a parent to his/her own biological child. 

And yet....

If the couple created the embryos together, as husband and wife, and if one of the spouses (usually the wife) goes forward with conceiving a child by use of those embryos, won't the husband be the father of that child?  Is it fair to ask a man who is now divorced from his former wife to be the father of a child she conceives after the marriage and against his will?  Is he liable for child support?  Should he be?

These cases raise daunting issues both legally and ethically.  As attorneys, it is hard to know how to advise our clients.  So, as with all such issues, I ask: how could these cases best be avoided?

Fertility clinics owe it to their patients to do a much better job on medical consent forms for assisted reproduction procedures.  Typically, these forms are prepared by medical malpractice attorneys who have little or no knowledge of family law, for the purpose of protecting the clinic from future malpractice claims.  Couples would be well advised to consult knowledgeable assisted reproduction attorneys before signing these forms, to make sure they fully understand the consequences of the choices they're making about future disposition of their genetic material.  The costs of these legal consultations are nothing in comparison to the costs -- both emotionally and financially -- of litigation like that currently going on in Maryland.


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