Who Gets Custody of Embryos After Divorce?
An increasing number of couples are using available reproductive technology to preserve unused embryos after in vitro fertilization. In fact, embryos can stay viable for quite a long time, allowing the couple to decide at a later point if they would like to have more children, or if they would like to destroy or donate the unused embryos. Of course, this raises the issue of who gets custody of those embryos after divorce. As I’ve mentioned before in numerous articles, the law has yet to catch up to technology. The courts are used to litigating decisions about child custody-as in children who are already born-but when the issue of embryo custody comes up during a divorce case, it can be difficult for the courts to make a decision. After all, fertilized embryos contain the genetic material of both the mother and the father or, in some cases, the mother and a donor. In most cases, custody of embryos after divorce will be decided by the divorce court through which the couple is litigating.
