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Frozen Embryos: Property or Children in Divorce?

Technology, while making many aspects of life simpler, also tends to complicate things, yes? We’ve all experienced that reality in many ways in our lives. In the area of divorce, this is as true as in anything else. A prime example of this: how to dispose of in the divorce of embryos that a couple freezes during the marriage for later implantation. Are embryos to be considered a child custody issue, or a property issue?

Although frozen embryos have traditionally been considered property, and subject to property division laws, there is a bit of a trend in which they are being treated as children, with judges applying child custody laws. Two such cases were decided earlier this year in Maryland and New Jersey.

Although a few cases are far from being a sweeping trend, it does raise the question of whether other judges may take a similar approach. If that happens, numerous issues will come up for consideration, many of which have serious ethical implications.

Couples who have concerns over the issue could perhaps take steps to set down expectations regarding reproductive technology in a premarital agreement. While such agreements are not 100 percent bulletproof, they are a good place to start when there is uncertainty as to how courts will handle the issue in the event of divorce.

Obviously, the law has not caught up yet with the advances in science and the availability of reproductive technology to the public. In time, divorce courts will need to solidify a workable approach to the issue and navigate the pitfalls associated with frozen embryos.