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Courts unsure how to treat frozen embryos after a divorce

Some couples in California choose to freeze embryos so that they can still have biological children of their own even after one spouse becomes infertile. When the couple divorces before the frozen embryos are used, there are a lot of questions about what the parties can do with them. Courts have long struggled with these issues, and it is still unclear whether frozen embryos should be subject to property division or child custody laws in a divorce.

One court case involving a divorced couple in San Francisco with frozen embryos has yet to be resolved. The couple created five embryos after they were married because the woman was about to undergo breast cancer treatment. The couple has now divorced, and the woman wants to use the embryos even though her ex-husband objects.

The man in the San Francisco case says that the clinic that helped them to create the embryos had them sign a consent form agreeing to have the embryos destroyed in the event that they were divorced. However, a lawyer for the San Francisco woman says that the clinic consent form is not a legally binding contract, and the woman's desire to become a mother at 46 years old should override the agreement in the consent form.

Because courts have not been consistent in cases involving frozen embryos, these types of cases could go either way. An estranged spouse who is involved in a dispute over the custody of frozen embryos may want to have representation from an attorney who has experience in family law matters. Legal counsel may be able to help a client to argue that control over the destiny of frozen embryos should be treated differently than other property division issues.

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