Determining Custody of IVF Embryos During a Divorce

In Vitro Fertilization (IVF) has been a way for many couples to start a family. However, if the relationship ends while there are cryopreserved embryos, it can complicate matters from a legal standpoint. In states like New York, the Child Parent Security Act (CPSA) offers options to solve disputes and emphasizes a proactive agreement. Here is how it works.

A change of status for fertilized embryos

Legally, an individual donor has the property of their unfertilized sperm and eggs. But, if fertilization is already done and led to an embryo, there is a change of legal status towards potential parentage. And if said embryo is already implanted, it will be considered as a pregnancy. But if a divorce occurs and the embryo is cryopreserved, the custody will be disputed at court, unless there is an agreement already.

Key agreements

Under CPSA, couples (whether married or not) can agree before starting treatment on the fate of embryos in case of divorce or death. These agreements can include:

• Legal parentage: Who will be named as the legal mother or father of a child born from the embryos.
• Support and visitation: Child support obligations and custody scheduling
• Inheritance rights: If a child conceived after a parent’s death is eligible for inheritance, something crucial for estate planning and cases of sudden illness

Whenever a gestational surrogate is involved, different rules are in order, as the CPSA has a Bill of Rights for them.

If there are no prior agreements between the parties, disputes must be settled in Family Court. To prevent this from happening or if you want to legally protect your intentions, you can contact a seasoned attorney so you can review your options.