Arizona couples who are getting a divorce and have a question about their legal rights with regard to their frozen embryos may be surprised to know that there is not much case law regarding the specific issue. In fact, even the consent agreement for the frozen storage facility that they have to sign early during the in vitro fertilization process may not be a legally enforceable document.
The embryos are generally considered to be the personal property of both parents. However, unlike other types of personal property, the ownership of the embryos can have a detrimental effect on the other party if a couple no longer have the same parenting goals.
The courts will typically make decisions regarding the state of the frozen embryos by asserting that a spouse cannot force the other to become a parent against his or her wishes. The courts also take into account the emotional and financial responsibilities of raising a child and usually refrain from imposing parenthood if both owners of the embryos refuse to comply.
It can take years for disputes regarding frozen embryos to be resolved. During that time, the embryos will continue to be frozen by the cryogenic facilities as long as the annual storage fees are paid. Couples should be aware of the policies of the facilities that they use. If the fees are not paid, the facilities can destroy the embryos. Discussions regarding the state of the embryos should a divorce occur should take place before the in vitro fertilization process begins. The resultant decisions can be made legally binding to save money and time in the future. An attorney can often be of assistance in negotiating an agreement regarding this relatively uncommon divorce legal issue.