What happens to Frozen Pre-Embryos after Divorce?

When couples use fertility clinics for family planning, it may involve a contractual agreement to freeze pre-embryos for a specific period of time.  If the marriage ends before the end of the clinic’s contract, what happens to the embryos? The contract may specify that if the marriage dissolves, the pre-embryo will be destroyed.  Does that agreement prevent the parties from mediating a different disposition? Mediation is the best path to an amicable resolution, but what if that doesn’t resolve the conflict?

In the leading case in Washington, decided nearly twenty years ago,  In re Marriage of Litowitz, 136 Wn.2d 514,  the parties had signed a contract with the fertility clinic which provided that if the couple could not reach an agreement about what to do with their frozen embryos when they divorced, they would have to petition the court for a decision on the appropriate disposition.  Reversing the lower courts, the Washington Supreme Court ruled that the pre-embryos should be thawed out and allowed to expire because the dispute had not been resolved within the five-year time frame prescribed by the Cryopreservation Agreement. The Court punted on the issue of whether the pre-embryos should be considered property or a child for purposes of disposition during a divorce, leaving that “legal, medical or philosophical” question for another day.  In 2009, a Washington Appellate Court, In Re Marriage of Nash, 150 Wn. App. 1029, enforced a cryopreservation agreement that referred the issue to the court in the event that the parties could not agree in mediation to the disposition of the embryos. The Court ruled in favor of the father, who wanted to preserve the pre-embryos for possible implantation with a surrogate, relying on a Washington State statute that would not force the ex-wife to become responsible as a parent to the future child.

The Disposition of Embryos During Divorce

Courts around the country have reached different conclusions on the disposition of pre-embryos during divorce, so the answer is not definitive. In a very well written opinion, a recent Arizona case addresses three approaches to the disposition of embryos during divorce; the contract approach, the balancing approach and contemporaneous mutual agreement, with a thorough review of case law supporting each approach. A lengthy dissent reveals that these legal issues will continue to be debated. In a 2018 unpublished Washington State Appellate decision, In Re Marriage of Guardado, the Court applied the balancing test, considered the embryos as property and confirmed the trial court’s order awarding joint ownership.  

Another example of this continuing controversy is playing out in Ohio. In the last 12 months, numerous lawsuits were filed in both state and federal court, after 4000 eggs & embryos were lost when the storage tank at the University Hospital’s fertility clinic failed, affecting the rights of 950 families.  One of the pending issues is whether the frozen pre-embryos are considered property or persons. In the Ohio state court actions, a ruling of the trial court that the embryos were not persons was just upheld by the Appellate court, and will likely be appealed to the Ohio Supreme Court.  A state court ruling will not be binding on the federal court, so the issue will be separately addressed in the cases pending in the U.S. District Court for the Northern District of Ohio. Another  lawsuit is pending in the U.S. District Court for the Northern District of California involving a similar fertility clinic malfunction.  

Property division and child custody issues in divorce can be extremely complicated and hotly debated. When difficult litigation is necessary, the Washington divorce lawyers at Molly B. Kenny, LLC are ready to be your advocate.

Molly B. Kenny
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Divorce and Child Custody Attorney Serving Bellevue and Seattle Washington
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