Family Law and Cryogenetics

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Cryogenically frozen embryos are a very unique type of marital property, to say the least.  They represent two divorced people having a baby.  Dividing this unique, and emotionally charged, property hinges on balancing one party’s interest in not being forced to procreate after a divorce and the right of the other party to have a biological child, which in most cases is her only chance to have a biological child.

There are many reasons a couple would choose to freeze embryos, including fertility issues and health issues.  For instance, many women of child-bearing age who have to undergo chemotherapy choose to freeze embryos prior to chemotherapy and, naturally, any potential surgery removing reproductive organs.  This is their only chance to have a biological child.  (It is a fact that frozen embryos are much more viable than using frozen eggs that are then thawed.)  Regardless if they remarried at a child-bearing age or obtained a sperm donor in the future, they would not be able to have any viable eggs – all their eggs are in one basket, so to speak.  Thus, it is easy to see the invaluable quality of frozen embryos to a woman who cannot have a biological child otherwise.

Like many seemly-personal topics in family law, this issue hinges on contracts.  It is imperative that couples not rush into a contract just to get it signed, even though one or both of the parties might be eager and hopeful at the chance to start a family.  Each party should understand the consequences of either agreeing to lose any chance of having a biological child or agreeing to have a child in this world despite your desire not to procreate, after a divorce.

There is no federal law regarding what to do with frozen embryos in a divorce and it is unlikely a federal law will ever be enacted because similar family-related matters are usually left to individual states to decide.  The original precedent set in the Tennessee case of Davis v. Davis, 842 S.W.2d 588 (Sup. Ct. TN 1992) in holding that the parties’ prior agreement would be honored, if there was one, but if there was not, then one party’s interest in not becoming a parent outweighs the interest of the party wanting to use the embryos has been followed by most courts.

However, one case concerning frozen embryos of divorcing couples has reached the United States Supreme Court.  Stay tuned for more blogs on this interesting topic and how courts have dealt with frozen embryos.

Arizona: The First State to Have a Parental Right to Embryo Law

This blog will focus on a case that gained a lot of notoriety in the public and, like most cases on this issue, is emotionally charged.  In the Arizona case of Torrell v. Torres, 438 P.3d 681 (2019), one court had to decide the disposition of frozen embryos in light of the parties’ in vitro fertilization agreement.  It was presented with the issue of whether the wife could use frozen embryos, which the couple created when dating, after the divorce without the husband’s consent.  The in vitro fertilization (IVF) agreement signed before they were married stated that that the eggs were to be donated if not used by the couple.

The wife, Ruby Torres, had to undergo chemotherapy and surgery that would be prevent her from becoming pregnant in the future, and thereby, prevent her by having her own biological child unless she and her then-boyfriend created cryogenically preserved embryos.  The IVF agreement signed by the parties gave the court the power to determine the fate of the frozen embryos after a divorce.  The agreement stated that if the parties separated the embryos could not be used to create pregnancy without express, written consent of both parties, but later in the agreement stated that the court could award one party or a third party the embryos for implantation.

The trial court held that the embryos were to be donated to a third party because it could not compel the husband to procreate, and the husband’s interest in not wanting to procreate trumped the wife’s interest to become a mother of a biological child.  However, on appeal, the appellate court held that the wife’s interest in the embryos outweighed the husband’s interest in not procreating.

In its analysis, the appellate court focused on the purpose of the IVF agreement, which was to preserve the wife’s ability to have a biological child.  The court pointed to the fact that the parties decided to preserve embryos upon learning of the wife’s cancer diagnosis and that the treatment would take away her ability to become pregnant.  The wife wanted to keep them and use them to have a biological child, while the husband wanted the court to honor their agreement.  Courts have acknowledge that where there is no prior agreement for disposing of cryogenically preserved embryos, the courts must balance the interest of the party wanting to become a biological parent and the interest of the party not wanting to procreate.

The Arizona court ultimately construed the contract as reading that the court should interpret the language of the contract.  In doing so, ultimately the wife’s giving up the opportunity to use another donor and being unlikely to become a parent outweighed the husband’s right not to become a parent, the court said.

Incidentally, an Arizona law went into effect last summer, which grants “custody” of frozen embryos to whichever party wishes to use the embryos to “develop [them] to birth,” according to the Arizona’s Parental Right to Embryo Law.  This is the first law of its kind in the United States.  This law imposes no obligation, right, or responsibility in relation to a future child.  This way the law balances both parties’ interests by giving one party the ability to become a biological parent and the other the party no obligation with respect to the future child.  This is the first state to enact such a law.  It will be interesting to see whether other states follow this as a model for future statutes.

New York’s Position on Frozen Embryos and Divorce

The most recent New York case dealing with frozen embryos and divorce is Finkelstein v. Finkelstein, 162 A.D.3d 401 (1st Dept. 2008).  In this case, the coupled signed an agreement whereby they consented to the use of the embryos for the couple’s own use and agreed that they could withdraw their consent at any time.

The husband filed for divorce and requested custody of the one remaining embryo in order to dispose of it.  During this time, he formally revoked his consent to use his genetic material, including the embryo, with the fertility clinic.  The Special Referee assigned to the case and later the trial court decided that the husband did not have a right to revoke his consent to the wife’s use of the embryo and the embryo was awarded to the wife after a balancing of the equities.  This embryo being her last chance to be a biological parent trumped any argument made by the husband in support of his right not to procreate.  The trial court granted wife’s motion to confirm the referee’s report, but the appellate division reversed.

Deferring to contract law, the appellate court cited Kass v. Kass, 235 A.D.2d 150 (2nd Dept. 1997) which stated that general rules of contract interpretation should be enforced in in vitro fertilization (IVF) agreements.  Relying on the parties’ overall intent, the court concluded that the husband had withdrawn his consent and the embryo could not be used by the wife.  Although this is a devastating result for the person whose last chance this was to have a biological child, courts across the country have tended rule in favor of using contract law to determine the outcome, which has mostly resulted in the party wanting to dispose of the embryos being awarded them.

Colorado Case Headed to the United States Supreme Court

The Colorado Supreme Court case of In re Marriage of Rooks, 429 P.3d 579 (Sup. Ct. Co. 2018) is currently in front of the United States Supreme Court.  In this case, the husband petitioned for dissolution of marriage, which was granted, and the court awarded him the cryogenically frozen embryos produced by the parties during their marriage as a result of in vitro fertilization (IVF).  The Colorado lower courts held that a court should first look to any agreement signed by the parties and next should balance the interests of the two parties.  It awarded the embryos to the husband, who did not want more children.  However, the Colorado Supreme Court reversed the lower courts’ rulings and now it is being appealed to the United States Supreme Court.

The Colorado Supreme Court discussed the appropriate factors and inappropriate factors to consider.  Specifically, the Court held that the intended use of the embryos by the party seeking to preserve them, the demonstrated physical ability or inability of the party seeking to implant the embryos to have biological children through other means, the parties’ original reasons for pursuing IVF, hardship for the party seeking to avoid becoming genetic parent, including emotional, financial, or logistical considerations, and either spouse’s demonstrated bad faith or attempt to use the embryos as unfair leverage in divorce proceedings, noting also that other factors may be relevant based on a specific case’s facts.

In discussing factors that a court should not assess, the Court included whether the party seeking to become a genetic parent using the embryos can afford another child, the sheer number of a party’s existing children, or whether a spouse seeking to use the embryos to become a genetic parent could instead adopt a child or otherwise parent non-biological children.  The case was reversed with instructions for the lower court to use these factors.


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