Who Gets the Frozen Embryos in a New Jersey Divorce

Take the following story: John and Jane get married and have children together using the technology of in vitro fertilization. After the successful IVF, the fertility clinic asks the couple what they want to do with the remaining embryos (successfully fertilized eggs). The couple decides to freeze them instead of destroying them. Now, the couple is getting divorced. Whose property are the frozen embryos?

If John and Jane can agree on the answer, then there is no problem. Perhaps John will agree to the embryos becoming Jane’s property in case she wants to have additional children or in case one of their own children later turns out to be infertile. Or, perhaps Jane will agree to let John have possession of the embryos. Or, the divorcing spouses may agree donating the embroyos to medical research or destroying the embryos is in everyone’s best interests. If one spouse agrees to give possession of the frozen embryos to the other, he or she would be advised to relinquish his or her parental rights in case any of the embryos are later brought to term.

But what if the couple cannot agree and the issue comes before a divorce court judge? This is one of those new areas of divorce law, and there is no single answer in every state or even in every case.

In some states – like New Jersey – divorce courts tend to order destruction of the embryos if the divorcing couple cannot agree on their disposition. The rationale for destruction of frozen embryos is that the courts are hesitant to force anyone to be a parent, as well as respect for a consenting adult’s right to change his or her mind. However, other New Jersey cases have ruled against destruction of the embryos, deferring instead to any agreement the couple made when they signed their contract with the fertility clinic.

The question of what to do with frozen embryos in the case of a divorce is a sensitive, troubling area of law. It requires careful thought, not just a little soul-searching, and counsel from an intelligent advocate who understands what’s at stake.

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