FAMILY LAW FAQ
Who Gets Custody of Embryos?

The recent innovations in reproductive
technology have helped many
couples and individuals achieve
pregnancies that may have been
impossible just a few years ago. As
with many innovations, however,
rapid scientific advances have brought with them new ethical and
legal dilemmas. Twenty years ago, judges and attorneys who were
accustomed to dealing with the often challenging issues of child
custody may not have guessed that they would soon be faced with
potentially even tougher issues involving custody of frozen embryos.

Take the case of a Tacoma, Washington couple who had two embryos
formed with donor eggs and the husband's sperm "left over" after a
successful birth using a surrogate. The couple had the eggs frozen
with the intention that they, too, would someday be implanted in the
uterus of a surrogate mother. The couple later divorced, and the
judge awarded custody of the frozen embryos to the husband. The
husband wanted to place any children born from the embryos for
adoption in a two-parent family outside the state of Washington. The
wife appealed from the court's ruling, arguing that she wanted  to
raise any potential children. The egg donor also wanted a say, and
sided with the wife.

A Michigan couple faced a similar dilemma. The divorced couple fought
over five frozen embryos for years. The former wife wanted to have
more children, using the embryos, but the former husband objected to
that plan and the case went to court. The judge ruled in favor of the
husband, stating that the husband had a right to choose not to have
more children. In that case, too, the wife appealed.

An Illinois court struggled with a similar problem in another case
involving frozen embryos, ordering in late 1999 that they remain
frozen until the court could sort out the weighty constitutional
questions involved. In that Cook County case, the husband and wife
were in the midst of divorce when the husband asked the court to
order the wife not to attempt to become pregnant through implanting
the embryos they had frozen earlier in their marriage. The court
issued the requested order, ruling that custody of the embryos would
be decided as a part of the divorce trial.

These cases demonstrate that thorny legal issues may arise when
assisted reproductive technology is implemented, further complicating
an already stressful situation like divorce. Couples considering
assisted reproductive technology are generally only thinking of the
potential positive outcomes and fulfilling their dreams of starting a
family. Such couples would be well advised, however, to discuss the
legal implications of their decisions with their lawyers before the fact,
so that if for some reason they do not live happily ever after, they will
have prepared themselves as well as possible to deal with the legal
and ethical challenges presented by their situation.

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