Paule, Camazine & Blumenthal, P.C. posted in Family Law on Thursday, November 17, 2016.
On November 15, the Missouri Court of Appeals ruled that frozen embryos are not treated the same as children in a divorce. This ruling came in a St. Louis County case that has received a great deal of attention, both in and out of this state. Jasha and Justin, the divorcing couple, already have two children together as a result of IVF (in vitro fertilization). Two frozen embryos remain from the IVF. Jasha wants to use the frozen embryos to have more children, even though Justin would be the father. Justin does not want the embryos to be used. He does not want to have more children with his (now) ex-wife. I represent Justin in this landmark case, and the Court of Appeals agreed with us that frozen embryos are not unborn children. Frozen embryos do not have rights to be implanted. The case might not be over, because Jasha is going to attempt to appeal it to the Missouri Supreme Court. However, if the law stands, couples who are fighting over frozen embryos will know that these embryos are going to be considered “property of a special character.”
This case does not answer the question of what will happen in every case involving a dispute over frozen embryos, including whether a couple could enter into a valid, enforceable agreement for the disposition of frozen embryos.
The result of this case is important for anyone, married, living together, or single, going through fertility treatments and who might be creating frozen embryos (think of the battle between Sofia Vergara and her former fiancé).
Whether people can be required to have children from frozen embryos remains an unanswered question. A court might enforce a clear agreement giving one parent the right to implant the embryos or if there are other compelling circumstances (for example, if there are no other children and the person wanting to use the embryos will never have another chance to have biological children). Each case will need to be examined based upon its unique circumstances.
Perhaps the best way to proceed is to require any future use of the embryos to be agreed upon by both parties. Talk to a lawyer who has experience in this field before you sign the IVF consent forms. Get legal advice from someone who knows, so that your decisions about these critically important matters will be informed. Think about what is at stake — building your family. Don’t take shortcuts. The attorneys at Paule, Camazine & Blumenthal, P.C. can help guide you through this process.