In 2005, there were 134,260 reported assisted reproductive technology (ART) Accordingly, the issue of parentage, or lack thereof, is clear. 742 provides that the “remaining eggs or sperm shall remain under the control of the party that provides the egg or sperm.” When couples engage in the everyday negotiation of a prenuptial agreement, the parties and their attorneys are required to anticipate a multitude of future “what ifs?
Florida law further recognizes gestational surrogacy agreements as enforceable contracts. §742.17 requires a written agreement between the couple seeking infertility treatment and their physician “that provides the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.” It would follow then that such written agreements should be upheld and enforced by the court in the event of the couple’s divorce, despite an alleged change in circumstances by one of the parties from the time the agreement was first entered. ” and reconcile the agreed-upon outcome of support, property, and other issues arising from their union in the event of separation, divorce, or death.
Significantly, the court in Davis held that disputes relating to the disposition of frozen embryos should first be determined by the terms of the written agreement between the couple. Indiana reportedly had proposed legislation to approve adoption of abandoned frozen embryos and would make it a misdemeanor crime to destroy an abandoned embryos.
Absent such agreement, the court must balance each party’s fundamental right to bear children or not bear children, and consideration of whether one party has other means available (outside of the frozen embryos) to do so. Colorado, Georgia, Montana, and West Virginia are struggling with the concept of the legal status of the frozen embryos between property and a living being. §742.13 (1) defines “assisted reproductive technology” as those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.
Those decisions, however, offer little uniformity for future cases.
As a general matter, when couples seek infertility treatment, multiple embryos are created, resulting in frozen, unused embryos for future use and implantation.to enter into a written agreement prior to embryo creation and set forth the following: a) the intended use of the embryos; b) what happens to the embryos in the event of divorce, death, or incapacity; and c) when the embryos will be deemed “abandoned.” The act also clarifies which intended parent may control the embryos in the event of divorce, illness, or death. Upon filing for divorce, the wife obtained a court order awarding her exclusive use and possession of the embryos. Although the couple had discussed between themselves and with their physician the possibility of donating the frozen embryos, they never made a decision as to their disposition in the event of death or divorce. The act further suggests a mechanism to withdraw consent to the terms of the preembryo agreement to dispose of or transfer the embryos. The lower court reasoned that the embryos were property subject to division, however, the First District reversed. A recent study, which looked at how fertility patients view their beliefs and available disposition preferences, coined the phrase “embryo disposition decision” as being a situation the couple will inevitably have to face. Regardless of whether there was an enforceable preembryo agreement, it was against state public policy to enforce an agreement against a party who had reconsidered his or her prior decision relating to disposition of frozen embryos. A couple’s failure to address this issue will ultimately end up before a court to decide in the event their marriage ends in divorce. Accordingly, the frozen embryos were ordered destroyed. It establishes a default provision regarding abandonment of the frozen embryos which is deemed to occur five years after the embryos are created. Snyder, Clarifying the Law of ART: The New American Bar Association Model Act Governing Assisted Reproductive Technology, 42 Family L. The Texas Supreme Court denied review of the appellate decision. However, if there is no agreement between the parties, the storage facility then must obtain an order issued by a court of competent jurisdiction relating to disposition of the embryos. 2007) (the court merely enforced the parties’ mediated settlement agreement in which the former wife agreed to let the former husband dispose of their frozen embryos and in which she agreed to turn over the embryos to the former husband). Q.203 (2008) The Model Act, §102(20) defines “intended parent” as a person, married or unmarried, who manifests the intent as provided in this act to be legally bound as the parent of a child resulting from assisted or collaborative reproduction. Should it matter that at some point in time both parties desired to have children together and be parents as evidenced by the fact that they voluntarily engaged in creating the embryos in the first place? Should the law allow and recognize that parties have a right to change their mind and withdraw their initial consent relating to disposition of the embryos? The decision to create multiple embryos is supported by sound medical practice in order to increase the couple’s chances of additional attempts at pregnancy.However, it also undoubtedly creates a future disposition problem that most couples choose not to address prior to commencing the infertility treatment, unless required by the storage facility to do so . Gonzalez practices with Young, Berman, Karpf & Gonzalez, P. She is board certified in marital and family law since 1997 and a member of The Florida Bar Marital and Family Law Certification Committee.