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When it comes to frozen embryos, child custody laws do not apply

Couples in New York that were once unable to have biological children due to infertility are increasingly turning to in vitro fertilization -- IVF -- in order to get pregnant. This process often includes the freezing of embryos, especially those that were created prior to undergoing serious medical treatments. However, while some people might view their frozen embryos as possible future children, what happens to these embryos in a divorce is nothing like child custody.

Although frozen embryos have increasingly become points of contention in divorce, one couple's divorce made national news when they headed to court over five frozen embryos. The wife was diagnosed with breast cancer early on in their marriage, and the couple elected to create the frozen embryos before she began treatment. She survived breast cancer but was rendered infertile.

Now that the couple is divorcing, the wife would like to use the embryos as her last hope to have biological children of her own. Her soon-to-be ex-husband thinks that embryos should be destroyed per an agreement they signed prior to creating them. However, some say that the agreement is not actually legally binding and that there is a precedent for ruling in favor of an infertile spouse who wants to use the embryos.

Compared with deciding who should actually be allowed to use frozen embryos following a divorce, child custody issues might seem like a breeze. However, some courts have struggled to determine if the embryos actually qualify as children or not. For the time being, New York couples will likely have to continue addressing frozen embryos as property when it comes to dividing assets during a divorce.

Source: NPR, "After A Divorce, What Happens To A Couple's Frozen Embryos?", Jennifer Ludden, Aug. 22, 2015

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