Welcome back to the Oxendine Law podcast. You know, divorce can involve disagreements over houses and retirement accounts and finances, even parenting time decisions. But what happens when a couple has frozen their embryos and those are stored at a fertility clinic? One spouse wants to use them, the other doesn't. Who gets to decide? So today we're talking about divorce and fertility treatments. Who decides what happens to the frozen embryos? Christine, I know you and I both have had a case on this recently. Yours turned out interesting. Mine turned out surprising. So let's kind of first talk about how this develops. Um and I've actually got some people that I actually know very well. They're still married. They didn't get divorced. But um the reality of the circumstances, some people are desperate to have children and some people struggle to have children. Other people seems like they sneeze and get pregnant. >> Mhm. >> But there's a lot of people that actually spend a lot of money going through IVF treatments. Um and when I say lots of money, I mean lots of money. I know people who have spent ooh 30, 40, 50, 60,000 dollars, right? To do IVF. And then all of a sudden, after years of trying, it happens. Right? And so you get these um you either get a child out of it, right? Or maybe you've done it just to kind of fertilize the embryo and you decide to save it later because uh for whatever reason you're not ready to have the child or there's some issue with the other spouse and so you fertilize somebody else's, you know, egg or use somebody else's sperm and you've got this thing stored and then your relationship doesn't work out. Things go south and then parties want to fight over the embryo. >> So the good news, if there is any in a situation where we've got frozen embryos in the event of a divorce, is all of the contracts at time that you decide that freezing embryos is what you're going to do, your contract will have contemplated what happens in the event of a divorce, what happens in the event that one party wants to now destroy the embryos and the other party does not. All of these things are contemplated in your contract. So that's the good news for us. The bad news is when you're in the process of going through this and you are working with your spouse so desperately to try to conceive an embryo um either for like he said like immediate insertion or just for saving for later, maybe there's a health concern, an age concern, whatever, you have elected to delay your pregnancy by a frozen embryo. You're not reading what happens in the event of divorce, right? You're not that's nowhere in your mind. Like I was joking earlier, it's like your cell phone contract. You don't read all this. You don't know what you're signing up for. When you sign a lease on an apartment, you don't read everything in detail. You don't know exactly what you're signing up for. We sign contracts all day, every day. At the end of the day, what we think in the moment is, am I getting what I want? Okay, let me sign. Where do I sign? Um and us Jared and I as attorneys, we have to caution people all the time. They come into a settlement agreement and say, all right, where do I sign? No, you read it. Oh, I've read it before. I don't care, read it again, right? So chances are you did not in great detail look at what happens in the event of a divorce or the event of an election to destroy. So now that you find yourself in a divorce process, it's time to grab that contract and see what we're looking at and see what the provisions say. And then just like any other contract, they're usually subject to some sort of interpretation. They try their best to be black letter law or be black and white, but sometimes like in my case Jared was referencing earlier, the provisions kind of conflict one another. They say what happens in the event of divorce, but then it also says what happens in the event that one party wants them destroyed. So which one controls? Does the divorce automatically control or does the fact that one parent now wants them destroyed control? >> So something Christine mentioned and I want to make sure you all when you do, when you go to the clinic, there's going to be a contract, like Christine said. And that contract, you know, some are better than others, but it is intended to cover all the scenarios about what happens to this fertilized embryo in the event that there's a divorce or that one party wants to use it and the other does not, right? So you have a contract that's been made during the marriage. Uh it's not an agreement that was made as part of your divorce. It was just a contract that you made with this third party provider, which is the fraternity clinic, about the use of that embryo between you and the fraternity clinic. So fast forward, in my particular case, both parties wanted the embryo in my case. Um dad wanted it, mom wanted it. They had their various reasons why they wanted it, and we tried to argue that case. This is a case where we had a final trial. So we had a divorce trial over many issues, including this embryo. And the court was very patient. The court heard testimony from both parties as to, you know, who paid for this and how much it cost and who wanted it and who didn't want it arguably and who's been paying for the storage fees and why it was important to the wife more than the husband and vice versa. And interestingly, in my case, I don't know why I wasn't expecting this outcome. It just kind of shocked me cuz I've always had courts decide on this issue. But in my particular case, the judge heard the trial and said, okay, I'm going to take this under advisement. And then months later, we got a decision on the entire divorce. And there was a short one sentence. There's a short one sentence decision on the embryo and it simply said, the court declines to address this matter. Now, why would the court do that? The court found that it was not part of the divorce. Court found that it wasn't part of the marital estate. It didn't involve an existing child. >> was not property, right? By law, an an embryo is not property. Therefore, the court doesn't have the authority to divide it. That's the way the that that judge interpreted it. They I'm here to divide property. >> That's >> it. So that judge basically deferred to whatever the agreement was and the contract controls. So it's basically for those parties to pursue any litigation further on that, they would actually have to file a separate lawsuit claiming breach of contract or whatever else they want to file to try and address that. So that's what happened in my case. >> Right. And luckily in my case after like Jared said, a lot of negotiation back and forth um and a lot of what goes into each party's sort of reasoning for why they may want it is what they had to go through to get there. I mean, generally it is the female that has a little bit more of the toll taken on her body, but it's the you know, the hormones and the injections and controlling your diet and everything else like your whole, you know, life changes while you're preparing to harvest an egg and then also you know, have a fertilized embryo. So um throughout the litigation in our case and with all of the back and forth, we were able to just simply reach a settlement agreement which if it is at all possible is what I encourage anyone to do because we were afraid that the court was going to punt like they did in Jared's case because it is not necessarily an immediate part of your marital estate. Now there are plenty of judges who will say the fact that you both want me to be the decider, that grants me the authority, I will make the decision. Some judges say I'm limited to property and embryo is most certainly not property. Therefore I'm not touching this. So with the uncertainty of what a judge may or may not do, you can always settle. In our case, we luckily thankfully had an even number of embryos so they were simply divided between the parties um and we had a separate contract that controls notice to the other if they're going to use them etc. etc. So a lot of private and intimate details that we were able to work out amongst the parties um but at the end of the day everyone walked away a little bit more satisfied than they did in Jared's case. I'm sure both of them wanted a slightly different outcome, but at least everyone was at least partially happy as opposed to just left with no solution like they were when it was left up to the judge. >> And I can certainly understand the concerns. I mean, if you've got a fertilized embryo using in this case dad's sperm and mom can just later go and impregnate herself with it, then what obligations does dad have down the road? >> Yeah. >> You know, I mean if if that's his it's his DNA, it's his child. So now they're divorced. Mom goes, takes the fertilized embryo, gets pregnant, gives birth to a child. >> Mhm. >> Now we having to come back for a paternity and legitimation case to address custody, parenting time and child support? >> file. >> Or yeah, to the contrary. >> Mhm. >> Mom doesn't want dad involved. Can he now come in and ask for rights to this child because it's his child? >> Correct. >> Um so you know, it's a very interesting topic. It's um very sensitive topic. It's certainly something that can be abused. >> It is. And I will tell you in our case um the mediator we were at mediation, the mediator is also an arbitrator. We were not in an arbitration posture or arbitration setting, but what the I think got the job done was he said if I were arbitrating today, the embryos would be destroyed. Because that's the only fair thing like you just said. It's essentially one of you is having a baby against their will. Um whether dad is having a a surrogate or worse possibly his new wife bearing his ex-wife's child, that's messy. And then same with wife, right? She decides later either with a new partner or without because she's got the womb. Um I'm going to have that baby. And now he's got a third child walking around. Um so the arbitrator said if I was arbitrating today, they would be destroyed because no one should have to have a child against their will. That was enough to scare both parties into saying, okay, let's try to figure this out. So some of the things that Jared had contemplated we were able to work out in our separate agreement um contractually which included future paternity legitimation, those sorts of actions, waiving those rights. So, it is something that you could handle contractually, but if you're dividing embryos, make sure we go through those extra steps because if you've just said, okay, cool, you get two, you get two, and you don't have that in, then you run into the problems we just talked about, potentially being sued for paternity or legitimation down the road, things like that. >> Basically, Christine's parties in her case are much smarter than the parties in my case. The parties in my case couldn't couldn't decide on whether this guy was blue or red, and the judge had to hear all that stuff, and that's probably exactly why she said, I decline to address this issue because she had to address all the other issues. >> That's right. >> But I also can certainly understand why the judge took that position. So, bottom line, some of the most difficult questions in a divorce cannot be answered by simply dividing an asset in half. That's certainly the case with an embryo. Thanks for joining in. 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