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Courts may grapple with medical technology in divorce cases

With advancing medical technologies and changes in the structure of families across the country, courts and lawmakers have been looking at ways to apply family law principles to new situations.

Last week, we discussed the new law in California that authorizes family courts to recognize more than two legal parents in specified circumstances. Last month, we discussed the custody agreement involving twins who were born through a surrogacy agreement that Davis Tutera and Ryan Jurica reached in their California divorce.

A similar concept involving frozen eggs has surfaced in divorce courts across the country, which may not necessarily fit within the concepts of child custody or traditional views of marital property or support. Often, courts have held that a frozen embryo is a form of property and not a child. Some states lean toward recognizing an embryo more like a child—or a potential child.

The issue over frozen eggs, frozen embryos or frozen sperm has arisen in several courts across the country, leaving judges in a place to make rulings that include how to define the subject matter of the dispute and decide what rules may apply in resolving the issue.

To put that somewhat heady statement into context, consider a case from the East Coast. A 38-year-old woman has asked a family court judge to order her estranged husband to pay $20,000 in a divorce proceeding to cover the cost of freezing her eggs so that she can later have a child.

She says that she wanted children during the marriage, but she and her husband never had any children. She wants to preserve her ability to have a child post-divorce, and argues that the court should treat her eggs as property in ordering the man to pay for their preservation.

A separate case (again from out east) involves frozen embryos. Prior to a 2012 divorce, a couple had fertilized embryos frozen contemplating having another child. When the marriage failed, the woman pointed to the agreement signed at the fertility center awarding her custody of the frozen embryos should the marriage head to divorce. Essentially, the woman says the case should be decided similar to a contract case, or possibly resolved through principles similar to those involving a prenuptial-like agreement.

Source: The Washington Times, "Are unborn children people or property in a divorce, and who decides?," Myra Fleischer, Sept. 19, 2013

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