THE BLOG

Divorce and the Future of Your Frozen Embryos

05/20/2015 01:36 pm ET | Updated May 20, 2016

Earlier this year, my colleague and I were discussing the trend of younger people choosing not to get married. She argued that Millennials aren't necessarily avoiding marriage, but instead are choosing to focus on education and their careers first, and then marrying later.

Another growing trend is delaying child rearing until later in life. Many couples are opting for freezing eggs or embryos as a way to help ensure future children. By now we're all probably aware of the recent lawsuit against actress Sofia Vergara by her ex-fiance Nick Loeb to prevent her from destroying their two female embryos preserved during the relationship. Nick seems very sincere in wanting to be a parent and based on his description of his life, I can understand why he is pressing this issue. I think it is also understandable that he wants his children's mother's genetics (she is quite beautiful after all). However, he has a very big hurdle convincing the courts of his stance.

The case raises many ethical issues and challenges to many California laws. As Nick mentions, why should he not insist on bringing the child into this world, when it is well settled that a pregnant female may do so over the objections of the father? In California, family law does not recognize marital agreements concerning child custody of unborn children. These types of agreements are against public policy. On the other hand, it is a well-settled law that once a child is born, even over the objection of one of the parents, there is in inescapable child support obligation for both parents. Thus, Sofia would be on the hook for child support should the court agree with Nick.

In most cases involving fertilized eggs, the parties agree to destroy them during the divorce or separation. However, given the Roe v. Wade decision, fertilized eggs are not considered life, so the courts have to treat them as property. As far as community property is concerned, the Court has wide discretion to divide it, taking into consideration a number of factors. In some cases, the court could easily determine the embryos should be awarded to the party who wishes to dispose of them. On the other hand, the court's hands may be tied based on the stipulated judgment of dissolution the parties may have signed, which may have provisions concerning the embryos.

The topic of frozen embryos came up in a recent conversation with colleagues. Specifically, what can a person or couple do to prevent discrepancies regarding frozen eggs should the couple decide to part ways? Considering that California family law does not recognize marital agreements concerning child custody of unborn children, the only formal documentation that could protect both the mother and father's wishes for the frozen eggs would be a signed contract. But I don't say that lightly.

Regardless if the contract is in the form of a premarital agreement, a contract between two individuals who have no intention of marrying but would like to have children down the road, or even post-nuptial agreement (a married couple planning for the future of their frozen eggs) the contract needs to be created with each party being represented by a family law attorney, preferably a Certified Family Law Specialist who will ensure full disclosure, undue duress or coercion, and certify that both parties were 150 percent presented with all of the details needed to reach the decisions agreed upon in the contract. In other words, the contract must be legally executed at the highest level of competency to make sure it will stand strong in court down the road.

For a couple going through a divorce without a contract and are in disagreement over the future of the frozen eggs, the path can be much more difficult. Again, since frozen eggs are not considered life, they will be considered property to be awarded to one party at the discretion of the family court. The court would possibly take into consideration the unwanted burden on the other spouse if the eggs were carried through to childbirth. On the other hand, similar to the Loeb vs. Vergara case, an argument can be made that like women who become pregnant and give birth to children over the father's objections, a woman or a man wanting to pursue bringing fertilized eggs to life should be allowed to do so over the other party's objection.

As unromantic but important as a premarital agreement is during the engagement period, a contract regarding frozen eggs should be standard practice among couples. The Loeb vs. Vergara case is an indication that couples need to consider "What if we decide to divorce or break up?" No relationship is bulletproof, but it goes without saying that planning for the good, the bad and the worse could save you from additional heartache and headache in the end.