In Vitro Fertilization: Fertile Grounds for Dispute in a Divorce

Custody disputes involving parents in a divorce proceeding are as varied as the couples themselves are. For some, the dispute may arise over sole or joint custody, for others, it may be focused on the details of the custody agreement or parenting plan, with questions relating to the religious tradition the child will be raised in, or how much time on a computer or cellphone is allowed in each home.

But some custody disputes may become even more complex, as in cases involving frozen embryos. In these situations, the moral and practical issues can multiply and the courts often have little experience or precedent on which to rely. 

With an embryo, a putative mother may wish to have the child, perhaps because as with some cases, she has become infertile due to her age, disease, or medical treatment. For these women, an embryo from a divorced relationship may be their only option for a biological child. According to the NPR story, courts tend to side with the women in these cases.

In many situations, the terms of the contract of in vitro fertilization may specify that upon divorce the embryos should be destroyed, to prevent the man or women from becoming an unwilling parent. In a few of these cases, courts have used that public policy argument and prevented the use of embryos.

The writer suggests that technology may solve this issue, allowing eggs to be stored unfertilized. While that might prevent some of these more exotic types of arguments from developing, it won’t prevent any of the thousands of more mundane child custody disputes from arising.