Cryogenically Frozen Embryos, In Vitro Fertilization & Divorce

Cryogenically Frozen Embryos, In Vitro Fertilization & Divorce by Joshua Katz

{3:13 minutes to read} In relation to divorce—or, for that matter, even a prenuptial or postnuptial agreement—how can you resolve the custody issues of frozen embryos? 

In New York, one thing is clear: The New York courts do not recognize these zygotes, gametes, or pre-embryos as persons. They do not have constitutional rights; therefore, this is a property consideration. I’m not making a political statement about the right to life, etc. In fact, the only state that treats them as people and gives them any kind of rights is Louisiana. 

Sofia Vergara was involved in a lawsuit where her ex-wanted the custody rights to their frozen embryos. He wanted to implant them in his girlfriend and bring them to term. He ultimately dropped the lawsuit before the California court made any ruling. Now, those embryos are apparently frozen in Louisiana, and some right-to-life group has brought a lawsuit on behalf of the embryos for their right to be born. This pending case may completely change the course of law in reproductive technologies, etc. 

Currently, the landmark case on this topic is Davis v. Davis, out of Tennessee. Davis v. Davis ruled that the relevant interests of parties in using, or not using, pre-embryos has to be weighed. The Davis court ruled that ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood through other means.

In New York, the case of Kass v. Kass was decided at trial where the wife was awarded custody of the frozen embryos. The husband appealed. He wanted them destroyed or donated to science. The Appellate Division reversed the divorce court and ruled that they should be donated to science. The case went up to the Court of Appeals and was affirmed. That’s the last case we have on the topic in New York, and it was almost 20 years ago.

Kass never got into the merits of the real issue, because Kass based the decision on a contract law. The in vitro fertilization clinic had Mr. & Mrs. Kass sign a contract which said that in the event of a divorce or absence of mutual consent, the embryos would be donated to science. Kass ruled that the intent of the parties was unequivocally set forth, and that, since this is such an intensely personal and private matter, it should be resolved by the parents and not by the courts.

Thus, several questions remain:

  • What if two parties agree that one of them can bring their embryos to term, and the other waives any rights to the embryos, either in a prenup or divorce settlement?
  • Can they do that?
  • Could they effectively waive child support in the future?

I do not believe that they can. I think that, down the road, if one of them brought those embryos successfully to term and gave birth despite any waivers, biologically, they are both parents. Parenthood can be established through DNA testing, and, based on public policy concerns, they could still seek child support from the other parent. (This has not been determined by the courts in New York.)

Please contact us with your questions regarding this matter.


Plaine & Katz, LLP
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Suite # 1050
Kew Gardens, NY 11415
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Website: PlaineKatz.com
Email: josh@plainekatz.com, mark@plainekatz.com

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