The news has been filled with stories about celebrity battles over frozen embryos, but the increasing use of in vitro fertilization has created thousands of former couples battling over control of unused embryos. Very often the stakes are high for the woman – these embryos may represent her only opportunity to have a child with her DNA. But on the other side of the equation is the issue of forced parenthood – even if the father has no legal duty to support that child, he will know that a child with his DNA and that of his former spouse exists, and that can make life very uncomfortable for families where the couples at issue have other children together.
The trending legal approach has always been to treat the frozen embryos as property subject to division in a dissolution under traditional rules governing distribution of marital property. But one cannot equally divide frozen embryos if the parties disagree about whether they should be used or destroyed. Most states have moved to enacting laws that require addressing ownership of the embryos in a written agreement prior to the in vitro procedure.
Arizona, however, became the first state in the nation to take a very different approach. In a law that went into effect July 1, Arizona has said that “custody” of the embryos must go to the parent that intends to bring the embryos to live birth.
This law has one clear benefit – it eliminates confusion about who “wins” when parties disagree about the fate of their frozen embryos. Beyond that, the law seems fraught with legal problems that may ultimately prove unconstitutional.
First, the law assures that a parent who wants to bring the embryos to life will always win over the parent who wants to destroy the embryos, which means that the parent that wishes not to become a parent will be forced to become a parent – even though the law explicitly precludes legal liability for support or custody of the child. These exceptions do nothing to prevent the harm of forcing a person to become a parent.
Second, the law seems to take a stance that an embryo is a “person” before implantation – a stance at odds with all current constitutional law. This legal stance could have brought implications, from issues of procreative autonomy to the future of medical research with stem cells.
Third, the law gives no consideration to the family implications. Suppose a husband and wife have two children together, both through in vitro fertilization, and several embryos frozen for future use. They go through a bitter divorce. Forcing one parent who wants to bring the embryos to life would mean these two parents would not only have to work on raising their own two children, but deal as a family with the consequences of raising a third child that everyone knows is biologically the same as the other two children but legally not treated the same. The potential for increased family conflict for the older children could be immense, and the law provides no way to deal with these ripple effects.
The Arizona law will surely be challenged in court. As other states consider ways to respond to embryo custody in divorce, they should see the warnings in the one-sided approach Arizona has chosen, one that runs afoul of the way all other states treat this delicate issue.
If you have questions about frozen embryos and divorce, contact us – we can help.