Bastarrika, Soto, Gonzalez & Somohano, L.L.P.

Court ponders what happens to embryos in divorce

In the past, a couple in New Jersey who were unable to conceive had limited options in their path to parenthood. Though relatively recent medical advances now allow in vitro fertilization, many family court cases raise questions regarding the ultimate fate of embryos should couples divorce and disagree on what should happen to them. In fact, the Supreme Court of another state is hearing arguments on a case in which a former husband and wife disagree about who should have custody of the embryos they created.

The couple reportedly created two embryos following their marriage in 2011. At the time, they signed a contract agreeing that the embryos would be discarded should the marriage end in divorce. They used one of the embryos, which resulted in the birth of a daughter before they divorced in 2016. Now the woman wants the original contract upheld while the man is asking that the court award him custody so that it can be adopted or used.

A trial court initially ruled in favor of the woman. Though it determined that the contract was not enforceable, it looked at the interests of both parties. Courts will often consider the ability of a person seeking custody of an embryo to have genetically-related children; however, as the man in this case has other biological children, that is not a factor in this case. Following his appeal of that decision, the Connecticut Supreme Court is now hearing the case.

Many other states have also grappled with questions regarding whether embryos are considered property or people, with some creating new laws to address the issue. Unfortunately, many people in New Jersey who have found themselves in a similar situation have found themselves unsure about their options and their ability to appeal a decision related to their divorce. Because of this, professionals with experience with family law matters are available to help.

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