A family law case in Virginia made headlines this month due to a property division concern that is relevant to an increasing number of couples across the U.S. In this case, a judge ruled that a divorced couple’s frozen embryos were not divisible property.
As assisted reproductive technologies become more common, more couples are creating and storing frozen embryos to preserve their fertility options. When a marriage ends in divorce, those embryos can become a source of emotional and legal conflict.
Challenging considerations
In family law, frozen embryos occupy a complex space — part biological, part contractual and highly personal. One of the primary legal challenges that many couples – and the legal systems that serve them – face is whether frozen embryos should be treated as marital property or potential children.
Courts across the country have taken different approaches. Some treat embryos as a unique form of property, subject to division under contract law or equitable distribution. Others consider the future implications of parenthood and lean toward protecting an individual’s right not to become a parent against their will.
Some courts follow a contractual approach. If the parties signed a fertility clinic agreement specifying what should happen to the embryos in the event of divorce, the court will likely enforce that agreement. These contracts may state that the embryos will be destroyed, donated or awarded to one party, depending on the circumstances.
If there is no clear contract — or if the contract is vague or disputed — the decision becomes more complicated. Courts may consider factors such as:
- The stated intentions of each party when the embryos were created
- The ability and willingness of each party to become a parent
- The emotional and moral implications of forcing or preventing parenthood
- The balance between one party’s desire to use the embryos and the other’s right not to
In many cases, courts have ruled in favor of the party opposing use of the embryos, especially when that use would result in forced parenthood. However, each case is fact-specific, and outcomes can vary. Having experienced legal guidance can help those facing this unique challenge during divorce.
