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Mediation and Litigation

Custody Arrangements for Frozen Embryos?

Posted on in Family Law

California divorce attorney, California mediation lawyerA rising number of couples are turning to in vitro fertilization for child conception. Many use this methodology to conceive after years of difficulty. Recent scientific studies show that IVF significantly increases the likelihood of conception. Meanwhile, other future parents choose this alternative as a way to preserve their ability for when they are more financially stable and able to care for their beloved child. However, a lot can happen between the egg retrieval and the time at which the eggs are utilized. Sometimes, couples need to go their separate ways through divorce litigation or mediation. Do these frozen embryos qualify for custody arrangements or property division?

Why Is This an Issue?

There currently is no legislation in California regarding the usage of embryos after a divorce. The downfall to this is that each court then must decide the outcome based simply on the facts of the case, without taking into consideration the emotional or physical needs of either individual. As an embryo is a fertilized egg, meaning it has DNA donated from each biological parent, and many fertility clinics require a contract from both sides before completion of the procedure. There is often a clause in this contract indicating what to do with the embryos in the event of a divorce. Unfortunately, we are not all born with the capabilities of seeing into the future, and at the point of signing, these two individuals are often so full of every other emotion, divorce is not the forefront option. Within many of these contracts, couples readily agree to destroy the embryos should a divorce occur.

Previous Rulings

Although no regulations exist, there are a few commonalities that exist between past similar dilemmas, including:

  • Out of 11 of the recent post-divorce embryo cases, judges ruled in favor the party who did not want gestation,
  • Judges tend to stick to contracts signed during times of clear-headedness, rather than the emotionally driven arguments of divorce,
  • Even in cases not involving a contract, the right of someone not to procreate nearly always overrides someone else’s right to procreate, and
  • In the three cases that found in favor of the women choosing to retain the embryos, their arguments were that it was their last chance of having children. 

Your Options

As always with cases brought before a judge, the power to decide was removed from the hands of the two people who mattered most, the biological parents of the would-be child. When you go to divorce litigation, not only is the power to decide lost, but the experience is substantially more expensive with time and money. Another alternative would be divorce mediation in which perhaps the original contract could be renegotiated, should the couple decide that be a viable option for both sides to be happy.

If one parent had worries over parental responsibilities to an unwanted child, perhaps a contract could be drafted similar to a sperm donor situation. If you are interested in discussing your options with a Los Gatos, CA divorce mediation attorney, contact the Law Offices of Benita Ventresca today by calling 408-395-8822 to take advantage of your risk-free initial consultation.



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