Years ago, test tube babies were a concept of Science Fiction novels. But today, a couples can remove eggs from the female, remove sperm from the male, and have the eggs fertilized, which creates an embryo. Medical staff can cryogenically freeze the embryo, which can then be thawed at a later time and implanted in the uterus of the mother or surrogate mother, where it grows as a fetus.
This scientific capability opens up a whole new area of family law. Disputes over frozen embryos have already arisen in various divorce cases.
One such case, Kass v. Kass was tried in a New York court. The dispute involved a wife who wanted to implant the embryo in her own uterus and the husband who didn’t want to become a parent. Both parties signed an in vitro fertilization (IVF) consent form prior to having the eggs removed, fertilized and frozen. The crux of the agreement was that both parties had to give their consent before the frozen embryos could be released from storage for any purpose. If the couple were to divorce, then the stored embryos would be addressed as part of the property settlement and released based on the court’s judgment.
Three weeks after signing the form, the couple became engaged in a divorce. At that time, they signed another agreement with each other that the embryos would be disposed of in the manner covered by the consent form, and neither spouse nor anyone else could claim custody of the embryos. The argument between the spouses was whether the consent applied before or after implantation. The court upheld their agreement based on New York contract law. The court could not allow implantation unless both parties agreed. In this case, it was against the husband’s wishes. Therefore, the court ruled there would be no implantation.
This case was in 1998, but a judge settled a similar dispute recently in November 2015 in a California case, based on a couple’s agreement prior to the IVF. He also ordered the destruction of the couple’s five frozen embryos.
If you have questions about IVF and need legal advice, discuss your concerns with attorney Chris Palermo. He will be glad to answer your questions and provide you with effective legal guidance.