It has long been a criticism of our nation's legal system that our family laws do not keep up with our reproductive science. Artificial insemination, for example, can cause a myriad of legal headaches over paternity, maternity, visitation rights and child support. This is because legal situations can arise for which no law has yet been written, leading to extensive and often complicated litigation in Minnesota and across the nation.
The problem is exacerbated by the fact that issues such as child support and custody matter so much to all parties involved. Often, parents care so deeply about their children's lives that they are willing to go to any lengths to ensure that they maintain custody. This can sometimes lead to extremely contentious court battles.
But what happens when the custody battle is not over a child, but an embryo that may one day become a child? Here, again, is a case family law lagging behind reproductive technology.
Increasingly, spouses have begun freezing embryos as part of the artificial insemination process. When a divorce occurs during this process, the fate of the frozen embryos is thrown into question.
Take, for example, a recent case from Maryland. A pair of spouses chose to divorce when they had nine frozen, fertilized embryos at a nearby artificial insemination facility. Under an agreement signed with the facility, the woman gained custody of them in the divorce. The man sued, however, claiming that the woman, who intended to use the embryos to conceive a second child, was taking away his right to refuse to become a father again.
The issue has a number of complications. Primarily, if the woman gives birth again, the man would be biological father, and thus on the hook for child support payments - even though the embryos were implanted against his will. Even if the woman waived her right to child support, he could still be forced to pay child support to the state government if the child ever takes advantage of state-provided emergency services, such as food aid or health care.
The couple was divorced in 2012, but the court case is still being decided.
Experts say there is one powerful way to avoid such contentious issues: Sign a prenuptial agreement that defines the fate of any frozen embryos. Prenuptial agreements have the power to sidestep a number of contentious divorce-related issues. Determining the outcome of frozen embryos beforehand could save couples a great deal of time, effort and money in the long run.
The Washington Times, "Are unborn children people or property in a divorce, and who decides?" Myra Fleischer, Sep. 19, 2013