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Frozen embryos create new challenges during divorce

During a divorce in Utah, it is customary to make decisions regarding the care of any children from the marriage, including custody arrangements and child support. This becomes more complicated when the child has yet to be born. The development of in vitro fertilization treatments has led to disagreements among partners who are divorcing about to whom frozen embryos belong.

There has yet to be a ruling in a court that has sided with those who wish to use the embryos to have a child despite the disagreement of the partner during a divorce proceeding, according to NPR. If one partner, which could be the father or mother, does not wish to have a child, then forcing the issue might violate public policy.

It is customary for IVF fertility clinics to require the signing of a consent form by both parties. Some clinics include parameters as to what will happen during divorce, such as the disposal of any embryos left over. However, these documents do not always provide the necessary clarity, and in some cases might not be legally binding.

According to the American Bar Association Journal, there is also the difficulty of determining whether or not an embryo is property or a living being. Under what category they are placed affects how they are handled in divorce proceedings. The judge might decide to utilize family law surrounding property division or child custody, although so far most have considered them property. This also leads to difficulties in determining what to do with the embryos, including whether or not to destroy them.

The number of frozen embryos in America tops 600,000. More than 1.5 percent of births in 2013 were attributed to IVF treatment. Although these numbers are significant, cases involving the embryos so far have been rare. However, it does pose larger questions that need to be addressed in the legislature to make any future cases easier to handle.


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