• December 20, 2011

An article in today’s Wall Street Journal discusses an emerging area of family law that has little law to guide practitioners.  Family law attorneys typically have plenty of experience dividing property and fostering agreements regarding children; dealing with frozen embryos, however, is another matter entirely.

Recent years have seen breakthroughs in assisted reproductive technology and many couples who would otherwise not have be able to have children have become parents as a result.  Often, embryos are created and frozen until needed.  But what happens if the “parents” of the unused embryos divorce?  If one of the parties wants to use them, but the other no longer wants to be a parent, whose wishes should prevail?

Parties to IVF may try to answer these questions in advance by entering into an agreement, but whether or not the court will enforce the agreement is an open question.  In addition, as the article points out, court decisions on these issues are few and divergent in outcome.  Minnesota presently has no reported cases on this issue, but it is likely only a matter of time.  Until then, practitioners and parties can craft their own agreements, but the cloud of uncertainty will remain.

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