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Frozen embryos: the new frontier in property division?

As this blog has discussed a number of times, property division can be an emotionally charged part of any Colorado divorce. Dividing the assets acquired over years of marriage can be a difficult and distressing task. Now some courts are wrestling with a new kind of asset brought into being by modern reproductive technology: frozen embryos.

A recent piece on National Public Radio told the story of one couple who find themselves in dispute over their embryos. They decided to create and freeze five embryos shortly after they were married. The wife had recently been diagnosed with breast cancer and the couple worried she would become infertile.

When the couple divorced, the embryos became the focus of disagreement. The former wife wants to use them; the former husband does not. The ex-wife's lawyer argues that since his client is now 46 years old, she is likely to be infertile, and the embryos are her only chance to have a biological child of her own. The ex-husband argues that he should not be compelled against his will to become a parent. Courts across the country have reached differing results in similar cases, but the trend has been in favor of the partner who does not want the embryos to be used.

Complicating the issue is an agreement the couple signed with the fertility clinic. It provides that if the couple divorced, the embryos would be destroyed. The ex-wife argues it is not a binding contract.

The dispute raises a broader philosophical issue: are embryos children, and should one or both parents be awarded custody? Or are they property, subject to equitable division in the property division process?

Most couples going through a divorce will not have to deal with problems quite as complex as this. Nonetheless the emergence of this issue shows that even in divorce court, the law must constantly adapt to changes in society and technology.

Source: NPR.org, "After A Divorce, What Happens To A Couple's Frozen Embryos?" Jennifer Ludden, Aug. 22, 2015

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