Jonathan Marks, STL Moms: What happens to frozen embryos in divorce proceedings?

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Margie Ellisor: Well divorce can be complicated enough, add in custody over a frozen embryo, and it gets even more difficult. It’s an issue Missouri lawmakers are talking about in Jefferson City, family law attorney Jonathan Marks with the Marks Law Firm here to break down the bill, if we can, it’s kind of complicated. Tell us what the bill’s addressing.

Jonathan Marks: So in essence it’s trying to determine, instead of what we used to view as property, a frozen embryo, how we’re now going to change it and put it into the divorce statutes and make a custody determination and consider that frozen embryo now a child.

ME: So how is it, in real life, going to break down?

JM: So in essence at the time that you would go and do a surrogacy agreement or you would subsequently enter into frozen embryos through an IVF procedure, you would now be having to consider what’s going to happen if your marriage ends in a divorce, because instead of being able to destroy those embryos at the time of the divorce, you are now subsequently going to have to consider those embryos a child, and possible have to make a custody determination when you’re going through your divorce procedure.

ME: What if both want the frozen embryo?

JM: So I guess under this particular bill, they’d have to view it as the same custody determination you would do, and determine what would be in the best interest of a child standard, in essence, what’s in the best interest of this frozen embryo and determine which parent would be more likely to bring that child through the surrogacy procedure to a live birth, and then make a determination which parent should have custody. And even in essence, I guess the court would have to determine if it’s sole physical custody or joint physical custody between those parents if they both subsequently want to have custody of that embryo.

ME: What if one parent wants it and the other one doesn’t?

JM: Then you get into a more complicated situation.

ME: Yeah.

JM: So, where before you may have been looking at things from a purely contract procedure, now you’re looking at it as the court’s going to order obviously to the parent that wants to bring that embryo to term, a custody proceeding awarding that embryo to the parent and then bringing in other factors. Are you subsequently making somebody a parent who has no interest in being a parent, which would be in today’s world unconstitutional. And then also what are you doing to do in regard to child support? Are you going to force somebody who didn’t want to bring a frozen embryo to term to subsequently pay for the surrogacy, and then pay for the child support that goes along for the next 22 years of that child’s life?

ME: Yeah. So, what if the parties made an agreement at the time of the IVF that they would destroy the embryos if there was divorce?

JM: So originally, as you would sit here today, then they would be destroyed and you would follow whether it would be a prenuptial agreement that you had prior to entering into the procedure. If this bill was to go through, at that point in time the court would find this to be illegal, and as a result of it, would not order that the destruction of that embryo could occur, which is really a nightmare if you’re a fertility clinic. Now you’re going to have to look at you subsequently storing those frozen embryos forever unless somebody makes a determination as to bringing those embryos to term.

ME: Yeah, I mean there’s a lot of scenarios here involving child support. And then you would have to pay for the surrogacy…there’s so much involved with this and a lot of unanswered questions with this bill.

JM: Absolutely. I mean, one of the things when a house and senate bill start is what are the open doors that are going to have to be addressed, and this certainly has a number of them. Most importantly, you’re going to have to determine from a parental standpoint are you forcing somebody to be a parent? Are you forcing somebody to have to pay child support? And then from the purely clinical side, from the business side, you know, what is it you are forcing a fertility clinic to do? And are you going to put them basically out of business?

ME: You can watch this one for us, Jonathan.

JM: Alright, I will do so.

ME: Tell me how it rolls out. Family law attorney Jonathan Marks, thank you for your time this morning. For more information on the Marks Law Firm, head to the STL Moms tab.

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