Written by on June 3, 2016 in Child Custody, Court, Divorce

Derek Fisher and his ex-wife recently announced that they have agreed to destroy their frozen embryos following their divorce.  Sofia Vergara and Nick Loeb are in litigation over the fate of their frozen embryos following their divorce.

So what does happen with frozen embryos during a divorce?  California currently has no legislation governing the disposition of frozen embryos pursuant to a divorce.

In a recent California case, the court held that a divorcing couples’ frozen embryos must be destroyed as the parties had signed a consent form with the fertility clinic agreeing to destroy the embryos if the couple were to divorce.

The husband, Stephen Findley, argued that he did not want to become tied to his wife forever with a child.

The wife, Dr. Mimi C. Lee, argued she had a Constitutional right to procreate, and that the embryos were her only chance to have a child of her own.  The wife further argued that the consent form was similar to a medical directive and could be changed unilaterally at any time.

In that case, the court ruled that the consent form the parties signed with the fertility clinic was valid and enforceable, and ordered the embryos destroyed.

This seems to be the trend with frozen embryo divorce cases, where most courts have not allowed one party using embryos against the wishes of the other genetic party, thereby avoiding “forced parenthood.”

However, there have been a few cases where the courts have ruled the other way.  Earlier this year, the United State Supreme Court denied a petition to hear a case brought by Jacob Szafranski to review a lower court’s ruling that the other party, Dr. Karla Dunston, had the right to use embryos created with Szafranski, without his consent.  As a result of the Supreme Court’s denial, the lower court’s ruling stands; however, this too is not dispositive in all cases.

In the very few published cases where the courts have ruled in allowing for the use of the frozen embryos, the facts have demonstrated clear infertility, in most cases as a result of cancer treatment. As a result, these embryos become a “last chance” to have children.

The disposition of frozen embryos pursuant to a divorce is extremely complicated and there are no definitive answers at this time.  If you and your ex-spouse have frozen embryos and you are contemplating a divorce, it is important to speak with an experienced family law attorney to discuss your options.

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