State Senate Bill Tries to Address Custody of Frozen Embryos

A Frozen Embryo Caught in the Middle of Divorce 1

In previous posts we have explored the complicated issues involved when couples divorce and seek either to dispose or take custody of frozen embryos not used during in vitro fertilization (IVF). In the Missouri General Assembly, lawmakers are currently considering two bills, HB 2558 and SB 1129, that would amend Section 452.375, the custody statute in our Uniform Dissolution of Marriage Act (UDMA) to include any in vitro embryo as a “child” for purposes of making a custody decision at the time of divorce. The bills would give the court authority to place the embryo in accordance with its best interest, which means the person “who intends to develop the in vitro human embryo to birth.” The bills as written would prevent the destruction of the frozen embryo. They would also subject all agreements made prior to divorce and at the time of the creation of the embryos subject to court review.

These bills take an approach far different from any other state to date. In general, most states have taken a contract approach to the embryos and relied on contract principles to resolve disputes. Courts and states have considered these embryos “property” not “children.”

To see how these bills would work in real life, let’s consider the following scenario: H files for divorce from W. The parties have one child conceived through IVF. The parties have four remaining frozen embryos. The parties signed informed consent forms at the time of the IVF but did not state what to do in the event of divorce.

In our first case, each party wants the embryos to raise as his or her own without the other parent. Under the proposed bills, the court will apply the best interest standard and determine which parent would get the chance to use the frozen embryos. Presumably, the court would have to consider which parent could afford the surrogacy and associated IVF procedures to bring the embryo to full term, as well as which parent could better afford to raise the child after birth. But in this situation, the system has a prejudice toward the wealthier spouse. Could the court order the wealthier spouse to pay the other spouse the funds to have the surrogate? That question is not addressed by the bills, nor is the issue of whether the other spouse would have to pay child support for this future born child. In this case, because both parents want the embryos to become actual children, they do not seem at odds on this issue; but should only one party have custody? Under the statute, the court could give joint custody to both parents. So, in this simplest of cases, where both spouses want the embryo to become a child and to raise that child, the parents really only fight over custody and support, as in any other divorce case with actual children.

But now change the facts – one parent refuses to become a parent, the other is desperate to become a parent. Let’s also say that they have no children and these embryos are W’s last chance to have her own biological children. Under the proposed bills, it would be a simple case – the court would have to award the W custody because H would destroy the embryos. But in so doing, a court has forced a person to become a parent, which is currently unconstitutional. Would the forced parent also have to pay child support? Under the current paternity statute, a court could so award.

And now change the facts again: the parties made an agreement at the time of IVF that in the event of divorce they would destroy the embryos. Under the proposed bills, that would be prohibited, so their expressed intent – allowed by another statute governing prenuptial and postnuptial agreements – would be overridden.

As you can see, the bill in its current form, no matter how well intentioned, has severe problems, not least of which is the lack of release of liability to fertility clinics that, if forced to keep embryos in perpetuity, would close their doors. Perhaps a custody approach could be integrated into the current contract approach to the law, but not to the extent sought by this current bill.

We will continue to watch the progress of this bill and keep you up to date on its progress during the legislative session.

If you have questions about custody of frozen embryos and divorce, contact us – we can help.

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