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The “infertility” dilemma remains an open one for divorcing couples

Changes in technology and the American family generally continue to provide family courts with new challenges. Lawyers naturally need to adapt and innovate in order to keep up with these developments and serve their clients.

A great example lies in the realm of the fertility arena.

embryoOn Monday, the LA Times ran a thought-provoking story about a San Francisco couple’s court battle over the fate of five frozen embryos. The mother, a pianist and “part-time anesthesiologist,” decided to create and freeze the embryos after being diagnosed with breast cancer no long after her marriage to the father. Her struggle with cancer left her infertile. Now the couple is divorcing; the father wants to destroy the embryos while the mother wants to implant them in a surrogate.

Needless to say, it’s a difficult and heart-wrenching situation that tests our moral, logical and intellectual dimensions.

What would a New Jersey court do back here on this East Coast? In short, we don’t know. The closest thing we have on point comes from our New Jersey Supreme Court in J.B. v. M.B. and C.C. (N.J. 2001) when the roles were reversed and the mother sought destruction of seven frozen embryos.

In that case, the case evaluated the parties’ written agreement and an allegation of an oral one and ultimately ruled for the mother, holding that that each party change his or her mind, including any agreement, up until that the subject embryo(s) are either (1) implanted or (2) destroyed. Consequently, the party seeking the embryo’s destruction typically has the upper hand.

In essence, J.B. and M.B. have agreed only that on their divorce the decision in respect of control, and therefore disposition, of their cryopreserved pre-embryos will be directed by the court. In this area, however, there are few guideposts for decision-making. Advances in medical technology have far outstripped the development of legal principles to resolve the inevitable disputes arising out of the new reproductive opportunities now available. For infertile couples, those opportunities may present the only way to have a biological family. Yet, at the point when a husband and wife decide to begin the in vitro fertilization process, they are unlikely to anticipate divorce or to be concerned about the disposition of pre-embryos on divorce. As they are both contributors of the genetic material comprising the pre-embryos, the decision should be theirs to make.”

….

“[T]he Massachusetts Supreme Judicial Court as well as our Appellate Division have declared that when agreements compel procreation over the subsequent objection of one of the parties, those agreements are violative of public policy.”

The Court did NOT, however, determine what would happen in the case of an infertile party wishes to use the embryos against the will of his or her partner:

We agree with the Tennessee Supreme Court that ‘[o]rdinarily, the party wishing to avoid procreation should prevail.’ Here, the Appellate Division succinctly described the ‘apparent’ conflict between J.B. and M.B.: In the present case, the wife’s right not to become a parent seemingly conflicts with the husband’s right to procreate. The conflict, however, is more apparent than real. Recognition and enforcement of the wife’s right would not seriously impair the husband’s right to procreate. Though his right to procreate using the wife’s egg would be terminated, he retains the capacity to father children.”

The question remains: Would a parent’s desire to be a parent outweigh the other party’s fundamental right to not be a parent when the parent desirous of surrogacy has no other procreative option?

child parent custodyAgain, we don’t know. We’ll continue to watch the San Francisco case, and any developments back here in our own court system, for any hints as to which way family courts could come down.

Any custody case is a high-stakes affair. For most litigants, their relationship with their children is their most important relationship. Don’t leave it to chance when everything is on the line. If you or a loved one has questions regarding custody of your child, from the embryonic stage forward, surrogacy contracts, or concerns about any other type of family law matter, please click here to contact the child custody attorneys at DeMichele and DeMichele.

For a confidential consultation to discuss your situation with one of our New Jersey custody attorneys, you can also call (856) 546-1350.

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Post Author: Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."