What Happens to Frozen Embryos in a North Carolina Divorce?

Posted by Jonathan Jerkins | Jun 06, 2019 | 0 Comments

Courts across the country are considering what happens to frozen embryos when a couple divorces. Although North Carolina courts have not yet faced this issue, with couples increasingly using assisted reproductive technology to start a family, a precedent-setting case may not be far in the future.

The Science

In Vitro Fertilization (IVF) is a common procedure used when a woman has trouble conceiving. A doctor extracts eggs from a woman, collects a sperm sample from a man, and combines the two in a laboratory dish, where it grows for several days outside the body. Then, the embryos are either stored at a human embryo cryopreservation clinic or implanted into the woman's uterus.

The Law

Each reproductive clinic has its own set of paperwork that couples must fill out before storing embryos. This usually details what happens to the embryos in the event of one or both parties' deaths but may also cover what happens if a couple divorces. 

The divorce provision in the reproductive clinic agreements has not yet been tested in court, but one couple's private agreement has. In California, Mimi Lee and her ex-husband Stephen Findley signed an agreement that if the couple divorced their frozen embryos would be destroyed. Lee's attorney fought for her to have custody of the embryos, citing that she was a breast cancer survivor with a low chance of conceiving. The court ruled based on the written agreement that the embryos must be destroyed.

New York, Texas, Tennessee, Oregon,  and Washington courts have followed California's precedent and determined that a written agreement between the parties determines what happens to the embryos.

Iowa courts have taken a different approach and ruled that nothing can be done with frozen embryos unless both parties agree.

New Jersey and Pennsylvania courts weigh both parties' interests before making a decision. In some cases, the court must weigh the mother's desire to gestate the embryos against her ex-spouse's desire not to father a child. In the Tennessee Case Davis v. Davis and the New York case Kass v. Kass, the courts ruled in the favor of the man who did not want to create a child with his ex-spouse after their divorce.

New legal issues arise when one or both spouses is/are not genetically related to the embryos, like when the couple has adopted someone else's embryos or the embryos were created using the woman's egg but donor sperm.

No federal or North Carolina state laws currently exist to dictate what happens to frozen embryos. Embryos are legally considered property, not people.

Hire an Experienced North Carolina Family Law Attorney

Divorce is a stressful and emotional process in the best circumstances and can be even more so when you disagree with your spouse about highly sensitive subjects, like the future of your frozen embryos. This is an area of law that North Carolina courts have not yet considered, so you need an experienced and dedicated family law attorney to navigate the legal system for you.

At Jerkins Family Law, we are committed to helping you through the divorce process, no matter what issues your unique case faces. Contact us today.

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.


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