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Family & Divorce Law

Case to focus on child custody and frozen embryos

By Tolison & Williams / July 22, 2015

An unusual case is before an out-of-state court, and the outcome is likely to set legal precedent. The parties are a former married couple who had embryos frozen during the course of their marriage due to the wife becoming infertile through cancer treatments. Now divorced, the parties are arguing over what should be done with those embryos -- the woman is asking that she be allowed to use them to have a child, and the man is asking that they be destroyed. While family courts see a wide range of divorce and child custody cases, this case could affect how such matters are handled in that state and elsewhere, including Colorado.

At the center of the debate is an agreement that both parties signed at the time the embryos were created. That agreement states that in the event of a divorce, any remaining embryos would be destroyed. However, the woman who wants to use a surrogate to deliver a child from her own genetic matter is arguing that she signed the document under extreme duress.

The couple went through the process because the woman had received a cancer diagnosis. With the knowledge that she would likely become infertile, they took the steps necessary to preserve their ability to have a child in the years to come. After a range of treatments for her cancer, she did in fact lose her ability to conceive. By that time, however, the couple was divorced, and the man no longer wished to father a child with his former wife.

This issue has been before the courts on several other occasions with mixed results. In many cases, the wishes of the party who does not want to procreate have been honored. However, there are cases in which cancer has rendered a woman infertile where the courts have ruled that she should have the right to go through with the process of having a child that shares her own genetic makeup.

As this case moves ahead, many in Colorado and elsewhere will follow to see how the matter is resolved. Technology has created new ways of becoming a parent, and the legal system is not always able to keep pace with such advancements. The outcome could lead to an unusual and groundbreaking child custody matter if the woman is able to move ahead with the surrogacy process.

Source: Los Angeles Times, "Divorced couple fighting in court over frozen embryos", Maura Dolan, July 13, 2015

Tags: Child Custody

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