It might not be at the top of your mind when you are dividing assets and embroiled in a divorce, but what happens to frozen embryos that were harvested during your marriage? Who gets to decide what to do with them?
Although some couples have paperwork drawn up that clearly defines what happens to embryos in the event of a separation, many do not. In fact, even though In Vitro Fertilization (IVF) has been allowing couples to explore the prospect of having a child outside of conventional practices since the 1970s, it did not become a viable alternative in New Jersey until the first clinic opened in 1983.
What Are Frozen Embryos?
Couples who have trouble conceiving a child naturally might turn to this process as an alternative. Essentially, a woman’s eggs are harvested and removed from her body; they are then combined with her partner’s sperm in a laboratory dish. Once the eggs are fertilized and become embryos, one or more are implanted inside the woman or a surrogate. Typically, because this process is expensive and time-consuming, multiple embryos are cultivated in the hope of having a child. Since the procedure is sometimes unsuccessful, some embryos are frozen so the entire process does not have to be repeated from scratch for each attempt.
It is here where a court of law may have to step in at some point. Whether or not a couple is successful in having a child, let us focus on when a marriage begins to crumble, and both parties agree that a divorce is best for everyone. Suddenly, those embryos that are not considered property but are not considered children for legal purposes are left in limbo, waiting for someone to decide what to do with them. Who gets to make that decision?
What Laws Govern Frozen Embryos in New Jersey?
The New Jersey Parentage Act of 2003 says that when a couple decides to pursue IVF, they must sign a written agreement prior to the procedure stating what they want to do with any remaining embryos. So long as their wishes abide by law, they can donate them to someone else, donate them for research, or destroy them. If both parties cannot agree on how to proceed, a court may have to decide what is in the best interest of the embryos. However, they also consider that neither party should be forced into becoming a parent involuntarily and consider factors such as the individual’s intentions and what they plan to do with the embryos before making a ruling.
In 2001, a married couple who used IVF to conceive had seven of 11 embryos remaining when they decided to get a divorce. The wife, who had trouble maintaining a viable pregnancy, requested that the embryos be destroyed, but her husband wanted the embryos to be implanted or donated to other couples. Ultimately, the case known as J.B. v. M.B., 170 N.J. 9, set a precedent for New Jersey, as it was ruled that the embryos would be destroyed because the husband was still capable of conceiving a child.
Therefore, the court can agree to enforce any agreement in place. However, if that agreement infringes on one parent’s wishes not to become a parent, they can refuse to enforce the agreement. Conversely, they can grant follow-through of the agreement but allow either party to change their minds up to the use or destruction of the embryo. Lastly, they can grant follow-through and rule that the embryo be used for research.
Although similar cases have received attention in high-profile cases involving Hollywood’s elite, the decision of what to do with frozen embryos is not something that should be taken lightly. Most who undergo IVF have already been through an emotionally draining process that may have taken a toll on their marriage. Do not be afraid to make a decision that can impact the rest of your life and the lives of others.
Get Assistance From the Knowledgeable Marlton Divorce Lawyers at Burnham Douglass Regarding Your Divorce Matters
Divorce is complicated enough without trying to determine which laws apply to your situation. Rest assured, the seasoned Marlton divorce lawyers at Burnham Douglass are on your side and able to answer all of your questions. Call 856-751-5505 or contact us online to schedule a free consultation. With offices located in Marlton and Northfield, New Jersey, we proudly serve clients in South Jersey, including Marlton, Evesham Township, Cherry Hill, Camden County, Burlington County, Northfield, and Atlantic City.