Advances in health care technology have created more opportunities than ever before for ill or injured individuals in New York to still have biological children. One of the more popular techniques includes freezing embryos for future use. However, as technology advances and evolves, so must family law when it comes time to determine what happens to frozen embryos in a divorce.
An out-of-state couple made national news when they entered into fierce debate over the fate of five frozen embryos. The couple chose to create and freeze the embryos after the wife was diagnosed with cancer. According to doctors, her treatment would make it incredibly difficult, if not entirely impossible, for her to become pregnant on her own. At the time, the couple signed an agreement concerning what would happen to the embryos in various situations, including a divorce, in which case the document stated that the embryos would be destroyed.
During divorce proceedings, the husband wanted to abide by the contract they had signed and have the embryos discarded. The wife disagreed and claimed that he was simply trying to blackmail her with her only chance to ever have a biological child in order to get what he wanted out of the divorce. The couple ended up heading to court, where the wife argued that the contract was not rigorous enough and should not be upheld since she did little more than check off some boxes. Ultimately, the judge did agree that the wife had every right to procreate but pointed out that she did not have the right to force her ex-husband to procreate with her via the use of frozen embryos.
There is little doubt that these types of issues are emotionally charged, but it can be difficult to argue against a legal contract that already dictates the fate of certain assets or, in this case, frozen embryos. The protection afforded by such contracts is strikingly similar to prenuptial agreements, which provide clear and concise instructions on a variety of matters in the event of a divorce. While, for the most part, couples in New York default to such contracts, agreements or prenups when facing a divorce, certain situations can arise in which it might be appropriate to head to court.
Source: CBS News, "Judge: Divorced California couple's embryos can be discarded", Nov. 18, 2015