An old country song wonders, in the event of a breakup, “Who gets the family Bible?” The country crooner and his ex may have been experiencing a genuine property division dispute. In our modern times, however, property division disputes have become much more complicated in some cases. For example, where a couple plans on having children in the future and embryos are frozen in anticipation of a future family, who gets the embryos – the couple’s planned family – if the couple divorces or separates? Several states are now grappling with this question.
Three Recent Examples of Disputes over Embryos
Earlier this year a celebrity couple made headlines when the wife wanted to destroy the couple’s two frozen embryos they had created. The husband resisted the move, claiming that his wife had no right to destroy the embryos without his consent. There was no document signed by the couple that stated what would happen to the embryos in the event the couple divorced or separated.
A separate San Francisco couple had embryos frozen after the wife was diagnosed with breast cancer. The couple had wanted to start a family but knew that the cancer treatments would most likely render her infertile. When the couple filed for divorced, the husband indicated he wanted the embryos destroyed. Forms signed by the couple appeared to indicate the embryos would be destroyed in the event the couple divorced, but the wife claims she has changed her mind.
In a recent Illinois case, a woman recently won custody of three embryos she created with her ex-boyfriend. The court found that the couple had entered into a valid oral contract that the woman would receive custody of the embryos in the event of a separation and that this agreement was enforceable. The Illinois Court of Appeals also found that the woman’s interest in using the embryos – which represented her last chance to have a biological child – was greater than the man’s desire to have them destroyed and to avoid “forced procreation.”
Who Gets the Embryos?
These three cases provide little guidance going forward as to how Illinois courts would determine a dispute over custody of embryos (other than such disputes are not handled in the same manner as child custody questions). The Illinois Court of Appeals case suggests a court should look at the relative interests of the parties, but that any agreement the parties may have entered into should be enforced.
These cases do serve as a reminder to thoroughly discuss these issues with a family law attorney as soon as possible. Even if you believe your marriage or relationship is on solid ground, it never hurts to have a plan in place in case things do not work out. Planning ahead and agreeing with your partner as to who should get custody of any embryos the two of you create can save both of you time and money litigating the issue in the future. Contact the experienced Wheaton family law attorneys at Abear Law Offices today for help.