What Happens to Embryos During a Divorce?

Lisa A. Whalen, Esq.

undefinedMost of the time, when dealing with splitting assets, it comes down to simply assessing the value of a particular item – whether it be a retirement account, house, or a car – which can be distilled down to a monetary amount. But as we all know, some things like human lives do not have a “price tag” associated with them. As modern science is accomplishing more and more, we are now able to conceive children in more scientific methods than just the traditional way, including artificial insemination and implantation of embryos developed and created outside of the womb. Couples facing infertility or other medical issues, such as cancer, in which the disease or treatment for the same may result in infertility often utilize science and technology to develop embryos and then preserve or freeze them for a later date when they are ready to become parents. But what happens to these frozen or preserved embryos in the event the parties divorce before they have been used?

Deciding who will be awarded the parties’ frozen or preserved embryo(s) in a divorce has proven to be extremely difficult and complex. If the parties cannot reach an agreement, the courts are forced to decide and have historically reached different results based on the circumstances involved. Arizona’s legislature recently enacted a statute (A.R.S. § 25-318.03) to give guidance to the courts on this issue. Specifically, Arizona law now requires that the embryos be awarded to the spouse who either intends to utilize the embryos and allow them to develop to birth or, if both spouses have the same intent to utilize the embryos, otherwise distribute the embryos in whatever manner that provides the best opportunity for the embryos to develop to birth. The statute also specifically waives and releases the spouse not awarded the embryos from any right, liability, obligation or interest in the children developed from said embryos, which presumably includes any child support obligation although this is not expressly stated in the statute itself.

If you find yourself or a loved one are involved with a divorce involving frozen embryos or other such unique circumstances and need the advice and counsel of an experienced attorney in these matters, please call OWENS & PERKINS at 480.630.2464 to schedule your free 30 minute consultation.

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