Custody of Embryos Following Divorce


When most people think about what happens to children during a divorce in Pasadena, we are assuming that the children in question have already been born. But with the growing popularity of IVF, it's becoming common for divorced couples to need to settle the issue of who gets custody of their frozen embryos.

To avoid future conflicts, many fertility centers require couples to complete an agreement stating what they want to do with the embryos if they end up getting divorced before completing treatment. This prevents arguments about whether the couple should donate the embryos for research, allow another childless couple to use them, or have them destroyed. If your fertility center has an agreement that you were asked to sign, it will generally be upheld unless the agreement is written so ambiguously that it is legally unenforceable.

It's trickier if one spouse wants to use the embryo to become a parent and the other no longer wishes to pursue this option. The courts have ruled that the wishes of the spouse who no longer wants to become a parent take precedence over the wishes of the spouse who desires to carry an embryo to term. Any way you look at it, parenthood is a huge responsibility. Family courts typically rule that you must be allowed to change your mind about whether or not you wish to assume the responsibility of having a child.

Davis v. Davis, 842 S.W.2d 588 (Tenn.) in 1992 was the first case to address the issue of frozen embryos in a divorce. The husband wanted the embryos destroyed, but the wife wanted to donate them to another childless couple. The court ruled that embryos were neither person nor property, but a separate special category of their own. Ultimately, the court ruled that the husband's constitutional right to privacy should be the deciding factor and that the clinic should follow its normal procedure for disposing of the embryos.

The constitutional right to privacy has been used in multiple cases since Davis v. Davis, with courts saying that either genetic parent has the right to prevent implantation of the embryos.

How Can We Help?

If you are in need of legal representation during your divorce, please call our office at (626) 683-8113 or email us at Our experienced Pasadena divorce attorneys can help answer any questions that you might have about how California's divorce laws will affect your settlement.