The division of property is often a highly contentious issue in a divorce case. But what happens when the “property” in question are fertilized pre-embryos conceived and frozen for later implantation by a divorcing couple who previously planned to have a child? Many state courts have been forced to confront this issue in recent years, and recently the Maryland Court of Special Appeals addressed the subject for the first time in a published opinion.

Judges Must “Look to the Preference of the Progenitors”

The case before the Court of Special Appeals, Jocelyn P. v. Joshua P., involved a couple who married in 2010. After failing to conceive a child due to infertility, the couple decided to pursue in vitro fertilization (IVF), a process that involved extracting eggs from the wife, fertilizing them with the husband’s sperm, and then freezing these “pre-embryos” until needed for implantation.

The couple signed a contract with an IVF clinic, which provided in relevant part that any unimplanted pre-embryos would be disposed of “in a manner mutually agreed upon by the partners.” In the event of divorce, however, the clinic could refrain from disposal unless directed by the court or “another agreement signed by both partners.”

The IVF procedure ultimately proved successful. The couple had a child born in 2016. Unfortunately, the marriage itself deteriorated a year later. The spouses sued each other for a limited divorce. They managed to settle all of their outstanding property and custody issues, except for what to do with a single pre-embryo that remained in storage at the IVF clinic. The wife wanted to implant the pre-embryo; the husband wanted the pre-embryo destroyed or donated for research.

A Maryland circuit court judge decided to jointly award the pre-embryo to both parties, effectively prohibiting its use or destruction unless both spouses agree on what to do. The wife appealed that decision to the Court of Special Appeals.

The Court of Special Appeals disagreed with the circuit judge’s decision to award joint ownership. The Court then proceeded to spell out the legal standards for Maryland courts to use in resolving these types of disputes in the future, which can be briefly summarized as follows:

• When divorcing partners cannot agree on what to do with any pre-embryos created during the marriage, a court should first “look to the preference of the progenitors” in any prior agreement between the parties. Such agreement must reflect the express intent of the parties themselves and not the boilerplate language used by the IVF clinic.
• If there is no such express agreement, the court should then seek to “balance the competing interests” of the parties by considering six separate factors, including the intended use of the party seeking to preserve the pre-embryo and the potential burden on the party that does not wish to become a genetic parent.
• In deciding how to dispose of a pre-embryo, a court should not consider the relative financial or economic situations of the parties, the number of existing children they have, or whether the parties have a “reasonable alternative” to implanting the pre-embryo such as adoption.

Applying these rules to the immediate case, the Court of Special Appeals returned the issue to the trial court, with instructions to determine whether the husband and wife “had an express oral agreement” to “give the embryo an opportunity for life,” and whether such agreement was intended to survive a divorce.

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This article has been provided by the Law office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.

Source:

https://www.courts.state.md.us/data/opinions/cosa/2021/2125s19.pdf