When a couple divorces, one of the first things they must do is decide how to divide their assets. If they are parents, they must also decide how to “divide” their time with their children, so that both parents have quality parenting time, and can contribute to the children’s well-being and growth. Both of these divisions are important, and even the most amicable of couples can find themselves at odds when it comes time to make the decisions.
For some divorcing couples, however, these two very different factors are part of a larger issue. When a couple decides to freeze viable embryos, and then later decides to divorce, there are additional issues. The Washington Post recently reported on a Colorado couple named Drake and Mandy Rooks. When they divorced, the judge gave custody of the children to Mandy – but custody of the embryos went to Drake. Now, she is fighting to keep them frozen, while he wants them to be destroyed.
The courts have struggled with this for years
Maryland first addressed the issue of “who keeps the embryos” five years ago, when a woman lost custody of her living children, but was granted the right to keep the embryos: Anong v. Mbah. A similar debate made national headlines in 2015, when actress Sofia Vergara and her ex-boyfriend battled over whether the embryos could be destroyed. (The lawsuit filed against her by her ex was recently dismissed by a federal judge.) No precedent-setting decision or final ruling has been handed down, which means different judges in different jurisdictions in different states can rule however they wish.
But perhaps not for long. The Post reports that the Rooks’ case will be heard by the Colorado Supreme Court and an appeal, if any, could possibly go to the Supreme Court – and that means a ruling all judges will have to follow.
Protecting yourself if you and your partner have frozen embryos
As the technologies for fertility advance, so do the legal issues. While no couple likes to think their marriage will end in divorce, it is better to be safe than to be sorry. There are a few steps you can take if you and your partner have frozen embryos for later use:
- You could create a contract with the fertility clinic that designates who has the right to decide what happens to the embryos in the event of a divorce, or a change in your marriage.
- You can leave it in the hands of the court. (This is what enabled Drake Rooks to be awarded the embryos.)
- You can terminate your parental rights to any children born from the embryos, as part of the divorce agreement.
- You can donate the embryos to a couple who cannot conceive on their own.
- You can create a pre-nup or post-nup that designates what happens to any embryos you and your partner may choose to freeze.
At this point, you and your ex-spouse have a good deal of freedom when it comes to designating what happens with frozen embryos. While this might seem intimidating, it also grants you the freedom to be more creative than the courts might otherwise be.
At Cynthia H. Clark & Associates, LLC, we understand that complex issues like these can lead to unanticipated challenges. Our skilled team of divorce lawyers is equipped to guide you through the divorce process, and help you start a new life. To learn more about our services, or to schedule a consultation in our Annapolis office, please call 410.921.2422, or fill out our contact form.
