December 17, 2019

Divorce: What About Potential Children?

Divorce cases require judges to decide how property should be divided between the spouses.  Much of the time those decisions are straight forward.  But technology has added complexity to the decision-making.  The Connecticut Supreme Court recently had to decide the disposition of eggs of the wife that had been fertilized in vitro with the husband’s sperm.

Using in vitro fertilization several of the wife’s eggs were fertilized.  One of the fertilized eggs (called “pre-embryos”) was transferred to the wife and resulted in the birth of a child.  The remaining pre-embryos were frozen for possible later use.  At the time of the divorce, the couple had conflicting plans for the pre-embryos.  The husband wanted the pre-embryos preserved so that the couple could have a second child if they reconciled or, if they didn’t, then donated to another couple.  The wife wanted the pre-embryos discarded.

The husband argued that the pre-embryos were human beings, not property, so must be allowed to live.  He also argued that even if the pre-embryos were property, his claim to them should have priority since he would be supporting life while the wife’s intent was to terminate life.  The wife argued that the divorce provisions of the in vitro contract with the treatment center should control.  It provided that if the couple divorced the pre-embryos would be discarded.  The lower court determined that because the contract was a standard check-the-box form it wasn’t valid.  The Supreme Court ruled that the contract was valid and controlling and that the pre-embryos could be discarded.

Since the dispute was resolved as a contract case, the Court didn’t need to address the husband’s arguments or other arguments that might have been raised.  For example, should the wife be forced to become a genetic parent against her wishes if the pre-embryos were donated to another couple?  The Court was clear that it was leaving the resolution of those arguments for another day.

As is frequently the case, a detailed contract anticipating reasonably probable scenarios and reflecting the agreement of the parties avoids leaving the decision to a court.  As the Supreme Court stated throughout its decision, seemingly urging couples to create detailed in vitro contracts, parents and not the state or the courts should “make this deeply personal life choice.”  Also as is frequently the case, experienced legal counsel can enhance the chances that a contract will be dispositive so as to avoid a later dispute and enforceable to implement that agreement of the parties.

This article first appeared in the December 12, 2019 edition of The Cheshire Citizen.

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