Deciding the fate of stored embryos in the case of divorce: Destroy or preserve?

A drama is unfolding in a San Francisco courtroom where a judge must decide between one spouse’s wish to have the embryos destroyed against the other spouse’s desire to preserve them as her only way to bear a child.

On the eve of their wedding the Wife was diagnosed with cancer. With aggressive treatment on the horizon, the couple hurried to UCSF’s fertility center, where five of the Wife’s embryos — fertilized by the Husband — were cryogenically frozen and preserved for a possible future with offspring.

The couple signed documents at UCSF that included provisions for destroying the embryos under various circumstances, including divorce. Three years later the divorcing couple reached agreement on everything but the embryos which are still stored at UCSF.

How California will deal with conflicts between divorcing spouses John Robertson, a University of Texas law professor and chair of the American Society of Reproductive Medicine’s ethics committee, said “the overwhelming case law” is to uphold signed agreements to dispose of frozen embryos in divorce.

But Judith Daar, a Whittier law professor, notes that courts have been split on the power of such signed consent agreements, saying of the 46-year-old Lee: “The disputed embryos represent that woman’s only clinical opportunity for genetic parentage.”

While courts in some states have dealt with this modern dilemma the issue has yet to be squarely addressed by the California courts. The drama is expected to unfold this week in this unprecedented legal battle.

The attorneys of Allen Dell pride themselves on staying abreast of changes in laws affecting our clients. Marriage affects all couples whether the partners are of the same-sex or opposite sexes, and whether they are addressing a health care crisis, retirement, divorce or death. Keep calm and call us.

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