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Embryo Custody Disputes in Florida Family Law


The advent of new scientific procedures that allow for such innovations as cryopreservation have introduced some complications into family law disputes; in particular, the issue of couples freezing embryos and entering into disputes over who has “custody” in the event of separation or divorce are becoming more and more common. While the question of whether frozen embryos should be considered marital property has sparked outrage in a number of states, in Florida, a law already exists addressing the issue. However, like many statutes, it is still written in such a way as to lend itself to plenty of litigation. As a result, this area of the law is still very much developing in the courts, leaving a number of questions unanswered, and warranting the need to address the issue in family law discussions if a couple has engaged in cryopreservation of embryos.

What Florida Law Dictates

Florida’s law specifically dictates that the treating physician and the couple must enter into a written agreement that provides for the disposition of the couple’s eggs, pre embryos, and sperm in the event of death, divorce, or any other unforeseen circumstance, and if they fail to enter into an agreement, any remaining eggs and sperm belong to the party that provided them, while decision making authority regarding the disposition of pre embryos “resides jointly with the commissioning couple.” In the event of death of one member of the couple, absent a written agreement, the eggs, pre embryos, or sperm remain under the control of the surviving member of the couple. The law even addresses the issue of whether a child conceived by an individual’s eggs, pre embryos, or sperm after their death is eligible for a claim against their estate by stating that they are not unless they have been explicitly provided for in the decedent’s will.

What It Fails to Address, And What Could Be Coming

What it does not do is address what happens when a couple fails to reach an agreement about disposition, as well as to what extent the agreement between the parties is binding/enforceable. Many fertility clinics have couples sign agreements indicating that embryos are the joint property of the couple such that both would need to consent to any future use of them and, in most cases, if the couple were to split up and one wanted to keep the embryos, the court would hold that the agreement controls. However, the issue of whether pre embryos should have legal status (i.e. where a pre embryo is treated as a life with personhood rights) is still unresolved, and could affect this issue in the future. Some states, such as Arizona, have chosen to go down this “potential for life” route by enacting new laws directing judges to grant any viable embryos to the individual who will allow them to be born, regardless of what any contract dictates.

What You Should Discuss with Your Attorney

As a result, a couple that is thinking about undergoing IVF should also contemplate working with an attorney beforehand in order to properly plan out what, specifically, they envision happening to any extra, unused embryos. Some reproductive doctors have, for example, advised women undergoing fertility preservation to take sole custody of their embryos from the get-go.

Contact Our Florida Attorneys with Any Questions

If you have any questions about family law issues here in Florida, contact our committed Tampa family attorneys at HD Law Partners today to find out how we can help.



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