Divorce 2021: Assets, Earnings... but Who Gets the Embryos?
![handle is hein.journals/famadv43 and id is 210 raw text is:
Divorce 2021: Assets, Earnings ...
But Who Gets the Embryos?
ith increasing regularity, separating
couples cannot resolve their disagree-
ments over cryopreserved embryos, and
turn to the courts to make these
determinations. When these couples
jointly seek to become parents, they may pursue in vitro
fertilization (IVF), a process in which one spouse's oocytes
(commonly called eggs) are fertilized with sperm, typically
the from the other spouse, in a lab. The resulting embryo or
embryos are then either transferred back into the intended
parent's uterus (or the uterus of a gestational carrier) for
gestation and birth, or they are cryopreserved (frozen) and
stored for future use.
Frozen embryos can survive and be viable for a very long
time, certainly longer than many unions. In 2020 a child was
born to a Tennessee couple from a donated embryo that had
been frozen for 27 years. Science has moved faster than the
law in this area, and states have taken divergent approaches
in case law. So, as we wait, what can an advocate or family
law practitioner do to best serve their client?
Ask Questions
Infertility is an intensely private matter, and you cannot
assume a client will volunteer information about stored
embryos. As a matter of course, practitioners should ensure
that they determine, in the beginning of a case, whether the
parties have frozen embryos, or other genetic material. Bear
in mind that when a couple utilizes IVF, they sign consent
forms which govern the disposition of unused embryos in
the event they separate, divorce, or otherwise end their
mutual relationship. Find out what consent forms were
signed and what these forms provide.
Know the Existing Case Law on Disposition of
Frozen Embryos
Because the law varies from state to state, it is important to
first educate yourself on your state's law. In each of the cases
discussed below which resulted in published appellate
decisions, one person wanted to use the embryos to bear
children themselves or to donate embryos to another couple
for the purpose of bearing children, and the other person did
not. The parties formed these embryos as part of a mutual
undertaking to allow them to bear a child and to raise that
child, but the couple's intimate relationship dissolved and
they could no longer agree what to do with the embryos.
Constitutional Rights-Right to Privacy/Procreational
Autonomy
The U.S. Supreme Court has included the right to procre-
ation as part of the right to privacy (which the Court has
found arises from the due process clause of the Fifth and
Fourteenth Amendments). If the right of privacy means
anything, it means the right of the individual, married or
single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the
decision whether to bear or beget a child. Eisenstadt v. Baird,
405 U.S. 438, 453 (1972).
Davis v. Davis
In Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the first
reported case to deal with a dispute over frozen human
embryos, the Supreme Court of Tennessee held that in the
absence of an express agreement between the parties, frozen
embryos should be awarded based on a balancing of the
parties' interests. The question was: who was to have cus-
tody of seven frozen embryos left over from the Davis'
infertility treatments. The court found that each of the
parties had an equal constitutional right to procreational
autonomy governing their interest in the embryos.
[T] he right of procreational autonomy is composed of
two rights of equal significance-the right to procreate
and the right to avoid procreation ...
842 S.W.2d at 601. Given these constitutional rights, the
court held that, in the absence of an express agreement, the
interests of the parties should be balanced in determining what
to do with the frozen embryos. The court noted that ordinar-
ily, the party wishing to avoid procreation should prevail,
assuming that the other party has a reasonable possibility of
achieving parenthood by means other than the use of the
pre-embryos in question. The husband's interests in avoiding
52 FAMILY ADVOCATE www.shopaba.org
Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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Divorce 2021: Assets, Earnings... but Who Gets the Embryos?
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