Frozen Embryos and Divorce

Family law

When entering a divorce there are many items that are subject to distribution between the parties. However, in some unique situations, the couple has frozen embryos that have yet to be used and the parties do not wish to destroy. The court has grappled with the rather new idea of frozen embryos however, some issues still remain unclear. If you and your spouse have frozen embryos, bring this to the attention of your Orlando Divorce Attorney as this unique situation will need a great amount of attention and expertise.

When frozen embryos are involved in any relationship, it becomes a very delicate situation as to how to divide or provide for these embryos. If one spouse wishes to dispose of them while the other wishes to implant them, the litigation may begin to pass property rights and travel into child custody laws. For these reasons, Florida enacted statute 742.17 requiring, “a commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.” However, these agreements generally do not provide the couple with legal application of child custody or divorce law for them to consider, minimizing their rights to the embryos. Further, no consequences have been implemented for the failure to make such an agreement. Instead, Florida statute continues to provide that if no agreement has been made that “any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm…[and] decision making authority regarding the disposition of pre-embryos shall reside jointly with the commissioning couple.”

Without a proper agreement determining the disposition of the embryos, the couple each has an individually protected right to the embryos. Therefore, when the parties are conflicted on what to do with the embryos during their divorce process it can become a heated battle of whose parental rights will prevail. Unfortunately, Florida courts have not clearly addressed this issue. In some cases across the United States, the parent wishing to implant the embryos was deprived of their right and the embryos were destroyed, as the court found it was unconstitutional to force the parent wishing not to procreate to parent a child they are strictly asking not to have. In others, the parent was able to implant the embryo and have a child on their own, removing parental rights from the second parent. Unfortunately, these issues are extremely sensitive and the parties may fall on either side of the line. This issue brings constitutional rights such as property rights, abortion rights, procreation privacy, and parental rights all into a single argument. The only opportunity couples have to handle this cooperatively is to make the agreement prior to the creation of the embryos with representation of a family law attorney.

Freezing embryos is a rather new scientific development that the courts are beginning to tackle. However, if you and your partner who both have genetic makeup involved in the embryos and are now divorcing, they can become subject to a highly litigated issue in your divorce proceedings. Therefore, it is important to know your rights and employ the experienced Orlando Divorce Attorney to assist you in your case and protect your rights.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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