Frozen Embryos and Divorce

A couple finds out they are not capable of conceiving a child, but in vitro fertilization is a possibility. So the couple freezes embryos with the intention of implanting them and having children. All of the implants are unsuccessful, though, and before a child can be born, one of the couple members files for divorce. What happens to the remaining frozen eggs?

This is the factual scenario behind In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). At the time of the parties' divorce proceedings, there were seventeen frozen eggs in storage. The wife wanted to implant the eggs, while the husband did not. The husband did not want the eggs destroyed, but preferred to have them donated to a couple. The Court had to sort out the issues.

The wife initially sought an analysis under what was in the best interests of the eggs. However, the court did not find this to be appropriate. This was clearly not the scenario that the legislature had in mind when it drafted the custody provisions of Iowa Code chapter 598. In addition, the issues did not boil down to who would be a better parent, but who would have the power to determine what happened to the eggs. The statute on the best interests of the child was simply inadequate for these complex issues.

In addition, while the Court had to be involved in personal decisions surrounding marriage and children, the history showed a tendency to keep one step back from deciding issues for people. For instance, a breach of a promise to marry ended with damages, not forcing the two to marry. Further, adoptions had to have a 72 hour waiting period after birth before finalizing, to ensure the birth parents were comfortable in their decisions. Still, clearly the embryos had to be treated with more care and thought than other items of property.

The wife argued that the husband had contracted to become a parent with her, and therefore this agreement should be enforced. However, the Court disagreed; couples did not plan on divorcing when they married, and frequently made plans without this course of action in mind. Therefore, as with all divorce issues, the Court had to focus on present agreements and intentions, rather than those when the couple was intending to stay together. 

The Court finally decided on a course of "contemporaneous mutual consent." Therefore, there could be no transfer, release, disposition, or use of of the embryos without the signed authorization of both donors. If the parties could not agree, the status quo stayed in place, and the eggs remained frozen indefinitely. The costs to keep the eggs stored was born by the donor who opposed the destruction of the embryos. 

Many lessons could be drawn from the Court's decision, but my personal spin is that this was an attempt to force agreement between the parties. The Court declared that it could not, or would not, make this decision for the donors/parents. However, if one of the parents really did not want these embryos destroyed, he or she was going to pay for it. This is likely to get one or the other to either move off of his or her position, or come up with a creative solution to the problem.