Custody Battle: Who Gets the Embryo?

With the technology of in vitro fertilization, the dreams of many men and women to become parents have come true.  That’s made a lot of families happy.  However, when parents decide to divorce, the situation becomes tricky.  In a custody battle – who gets the embryo?

Just last week, a court in Cook County, Illinois addressed this very issue.  In 2009, because of infertility, Karla Dunston and her boyfriend, Jacob Szafranski agreed to create embryos together that could be frozen for future use.  A written agreement was drafted, giving Ms. Dunston control of the embryos, but it was never signed. After the couple broke up, Mr. Szafranski changed his mind, and litigation eventually ensued.  The Cook County Judge ruled that Ms. Dunston has custody of the frozen embryos. The Court explained that “Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot.”  Mr. Szafranski plans to appeal the decision.

There have been very few higher court cases addressing this complex situation.

Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), was the first court to address this issue in 1992. In that case, the husband wanted to destroy the embryos, but the wife wanted to donate them to another couple.  The Tennessee Supreme Court ultimately ruled that the husband’s interest in avoiding parenthood was more significant than the wife’s interest in donating the embryos to another couple.

In J.B. v. M.B., 783 A.2d 707 (N.J. 2001), the husband wanted to preserve the embryos for another infertile couple to use.  The wife wanted them destroyed, and did not want her former husband to retain them, either for himself or to donate.  In reaching an ultimate decision, the New Jersey Supreme Court stated that it did not want to force the wife to become a biological parent against her will.

In Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006), the husband and wife had frozen their embryos, and had signed a contract with their fertility doctor.  In the contract, the parties agreed that if the parties divorce, then the embryos shall be destroyed.  The wife requested the embryos in the divorce action, but the husband objected, citing the contract.  Ultimately, in 2006, the Texas Court of Appeals ruled that the contract was valid and enforceable and superseded the wife’s desire to become a parent.

There is no United States Supreme Court on point, so currently, there is no legal consensus on the issue.  But one thing is certain – any couple contemplating in vitro fertilization should consider a contract, and include the possibility of divorce or separation.


Leave a Comment