Custody and IVF

Many couples aspire for years to grow their family by having children. While some couples have their own children, others may choose to adopt. The growing field of fertility science provides alternatives to those couples who may have trouble conceiving on their own. One form of this type of treatment is IVF, or in vitro fertilization. In this process, embryos are created and frozen until a couple is ready to proceed with implantation and hopefully pregnancy. When a couple divorces or separates before these embryos are implanted, it may become up to the court to decide what happens to the embryos.

The New Jersey Supreme Court addressed the issue of IVF and divorce in the case of JB v MB. In that case, the parties went to a fertility clinic and had embryos frozen during their marriage. The agreement they signed with the fertility clinic provided that if the parties divorced and the judge did not otherwise order who would take possession of the embryos, the embryos would become the property of the clinic. The parties then divorced. The final decree of divorce made no provision for the embryos. The husband, MS, subsequently brought suit against the clinic, stating that the agreement was against public policy, as parents should not be directed on how to dispose of the embryos. The Supreme Court agreed with the husband. The court recognized that with the rise of fertility treatments and use of IVF by many couples, the use of the types of agreements that gave custody of the embryos to the clinic was unnecessary.

However, that does not answer the real question of what would happen if the couple both wanted custody of the embryos or if one of the parties wanted to destroy the embryos while the other wanted to keep them. The Supreme Court did address that subject by stating any pre-existing written agreement should prevail. If none and one party wanted the embryos destroyed over the others objection, the interest of both the parties would have to be addressed. The court did caution, however, that in such a situation, the party requesting the embryos be destroyed would probably be successful.

We have experience in helping clients with complicated custody and fertility issues during and after divorce. Call us today at (732) 529-6937 to talk about your case.

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