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Custody Of Embryos In Event Of Divorce

By Amy Wallas Fox

For many couples, the only way to build their family is through assisted reproductive technologies (ART) including in vitro fertilization (IVF). With IVF, eggs are retrieved from a woman’s body and fertilized with sperm in the laboratory, creating embryos that are grown for several days outside the body. At that point, many embryos are cryopreserved prior to transfer to a woman’s uterus. What becomes of such embryos if they remain in storage at the time of progenitors’ divorce?

Reproductive clinics usually require couples to sign documents detailing disposition of their embryos in the event of their deaths and in the event of non-payment of storage fees. Clinics may also require agreement between the couple detailing what should happen if the couple divorces or one spouse is incapacitated while embryos are frozen. Options include procreation by one or both spouses, donation to medical research, or thaw and degeneration of the embryos. In California, New Jersey and Massachusetts it is required by statute that the fertility center mandate their patients to agree on disposition in a variety of circumstances, including divorce (See for example, California: Health and Safety Code 125315).

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