Who Gets Custody of the Embryo in California Divorce?
Most couples without children who divorce or separate before marriage go their separate ways without child custody issues. But what happens when a couple has frozen embryos that were created during happier times in the relationship? In those cases, you might have one more issue to address, and one that may be as complicated to resolve, as couples who have children during their relationship.
Today modern medicine allows couples to separately freeze their respective eggs or sperm. As a result, there is the potential for disagreement over shared embryos in the event of divorce or separation. While these cases are highly emotional and case law diverges between jurisdictions and continues to develop, courts generally view embryo cases as a matter of legal contract where previous agreements existed.
The following is an overview of issues that arose when famous and infamous divorcing couples turned to the courts to determine who gets custody of the embryos.
The Celebrity Embryo Case of Sofía Vergara And Nick Loeb
Sofia’s legal battle over her frozen embryos started after she and fiancé Nick Loeb ended their relationship. Loeb and Vergara broke up in 2014. Before the breakup, Vergara spoke publicly about having frozen her eggs and her desire to have more children. She revealed that she and Loeb planned to use a surrogate as she had thyroid cancer in 2000. Like many other cancer survivors who undergo treatment, she was exposed to radiation, thus the need for frozen embryos. Vergara and Loeb shared two frozen embryos, and the terms of their arrangement required consent from both parties before they could be brought to term. Vergara, who is now married to another man, refused to give her consent and Loeb sued. The two have been battling it out in court ever since.
San Francisco Woman Must Abide by Embryo Contract
A similar case of infertility issues and frozen embryos involves a San Francisco woman, Mimi Lee. She must abide by an agreement with her ex-husband to destroy five frozen embryos if they got a divorce. San Francisco Superior Court Judge Anne-Christine Massullo said in a tentative decision that the agreement trumps the woman’s desire to now keep the embryos. Lee and Findley signed a consent agreement before fertility treatments in which both said they would like the embryos thawed and discarded in case they divorced, according to court documents.
Lee had argued that the embryos represent her last chance to have children after cancer treatments made her infertile. Lee’s ex-husband, Stephen Findley, wanted to discard the embryos in accordance with the agreement he and Lee signed while married. Finley’s lawyer alleged that Lee was using the embryos as blackmail in their divorce proceedings. In the end, Massullo said California law is clear that couples must decide what to do with embryos they create in the event of separation or divorce. Massullo also stated that although Lee might have a right to procreate in other circumstances, she doesn’t have a right to procreate with Findley.
Husband Wants to Give Embryos Up for Adoption
Another similar case is that of a Tacoma, Washington couple who had two frozen embryos. The embryos were formed with donor eggs and the husband’s sperm left over after a successful birth involving a surrogate. Like other once happily married couples they had the eggs frozen with the plans to implant the uterus in a surrogate mother. Unfortunately, the couple later decided to get a divorce. The interesting twist is that the husband wanted to place children born from the embryos for adoption. The wife appealed from the court’s ruling, arguing that she wanted to raise any potential children. The judge eventually awarded custody of the frozen embryos to the husband. The wife appealed that decision.
Illinois Woman Ordered to Avoid Pregnancy with Frozen Embryos
An Illinois court struggled with a similar problem in another case involving a couple’s frozen embryos. In that Cook County case, the husband and wife were going through the divorce process when the husband asked the court to order the wife not to attempt to become pregnant. He did not want the wife to implant the embryos they had frozen earlier in their marriage. The court issued the requested order. The fate of who gets the embryos was to be decided as a part of the divorce trial.
A Family Attorney Can Help Sort It All Out
Divorce or separation is stressful enough. Custody disputes involving future children are more complicated and typically elicit heightened emotions. Despite the diversity of the individuals involved, many of the women involved have lost their ability to have children due to cancer treatment.
Couples should always discuss the legal implications of their decisions with an experienced lawyer before they agree to a contract involving frozen embryos. The main reason being that if for some reason they end their relationship and or their fertility is affected, they will have prepared themselves to deal with the legal and ethical challenges that frozen embryos can present.
Although these cases are highly emotional, courts generally see these cases as a matter of legal contract. Couples are advised to have their intentions put in writing before they undergo any procedures resulting in a frozen embryo. If you are considering filing for divorce in California and you and your spouse have an agreement in writing regarding the disposition of your frozen embryos, you should contact a local divorce attorney immediately. Even if you are not divorced but live in California, have questions and want an agreement drafted it is best to seek legal help. An attorney will be able to review the facts of your case and provide you with advice to help guide you through process. Couples residing in California who share frozen embryos can get peace of mind today by meeting with an experienced child custody attorney.