Deciding over genetic material during a divorce

On Behalf of | Oct 11, 2021 | Divorce |

One conflict California couples headed towards a divorce might not anticipate is having to decide what to do with their frozen embryos. But with IVF being a common route to parenthood for many couples, when these couples decide to go their separate way, they might struggle with how to deal with the situation.

The contract

When couples decide to seek in-vitro fertilization, they usually sign a contract that states their intention on how to deal with any frozen embryos in case of the death of one of the spouses or if they decide to end their marriage. Usually, couples decide between several options, including:

  • Establishing ownership of the embryos, which can be one person or both
  • Donating the embryos for scientific research or to another person
  • Disposing of the embryos by destroying them

How do courts decide?

The fight over genetic material during a divorce is delicate. Courts do not consider genetic material, such as frozen embryos, to be a typical asset that can simply be awarded to one person or the other during the division of property. However, it is also not the sole property of one person. The trend in courts is to favor a person’s right not to have children with their ex-spouse after the marriage ends. However, there are cases, where the opposite is true.

When the court needs to decide the outcome of what to do with the embryos during a divorce, it can choose to enforce the contract the couple signed. Another option can be to consider the possibility of each person being able to become a parent through other means and then deciding based on that. Finally, courts might decide to allow the couple to arrive at a mutual agreement, which means the embryos will continue to be frozen while the couple continues to negotiate.