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Frozen embryos: a reality that can pose hard family law questions

The rapid pace of advancements in assisted reproduction methods has proven to be a boon for a lot of Texas couples. They may intend to start a family, but only under optimal conditions. With patience and planning a lot of dreams may be brought to reality.

But if there is one thing that is constant about the human condition, it is that it is subject to change. A couple's intentions at one point in time can be derailed by events later, such as a divorce. If all the patience and planning earlier resulted in a stock of frozen embryos, new questions about what should happen to those embryos can surface.

Such family law questions become issues that may have to be decided by the courts. And as a recent story by National Public Radio observed, the courts are far from unified in how they resolve these matters.

When couples decide to create embryos, the process is typically done under the aegis of a fertility clinic consent agreement that both parties sign. Usually the document spells out what is to happen to the embryos in the event of a divorce. But what legal case history reveals is that courts have overruled terms of agreements if it is determined that they might violate the reproductive rights of one of the parties.

Just such a case is currently in the hands of a judge in San Francisco. The agreement that the now-divorce couple signed said that frozen embryos they created should be destroyed if they split up. The issue before the court is that the ex-husband wants the agreement fulfilled. The ex-wife, however, at age 46, argues that she has no other shot at having a biologically related child.

How the judge may ultimately rule is unknown at this point. But one legal observer suggests that just as advancements in cryopreservation have allowed frozen embryo issues to develop; newer advancements may provide the answer. In recent years, it has become possible to freeze a woman's unfertilized eggs for later use. Having to create an embryo first is no longer necessarily needed.

That means that a couple's individual contributions to creation can be maintained separately. And in the event of a divorce, those contributions can return to their sources.

Of course, that only mitigates issues going forward. It doesn't address issues that may arise over existing frozen embryos.

Source: Texas Public Radio, "After A Divorce, What Happens To A Couple's Frozen Embryos?" Jennifer Ludden, Aug. 22, 2015

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