A New Twist on the Custody Battle: Frozen Embryos


Valentine's Day is an occasion to commemorate love and commitment to one's partner. For couples raising children it is an opportunity to focus on each other, often a scheduling challenge in the heavy child-rearing years. However, when separation, divorce and/or custody battles are on the table, Valentine's Day can be a reminder of the loss of love and the intact family that many people claim as a life goal. This would not be a day to anticipate with any enthusiasm.

For people who have experienced infertility in their effort to build a family, separation or divorce can signal a new area of conflict that may be a challenge to the couple as well as the professionals involved in resolving the dissolution of the relationship. This 21st century challenge involves the disposition of frozen embryos, usually created within the context of the parents' own family building efforts through in vitro fertilization. These cryopreserved embryos can test a person's faith, emotions and moral beliefs, making the issue as contentious as any other in a separation or divorce agreement.

Having achieved a hard-won pregnancy, some parents view their embryos as the potential siblings of their beloved child/ren and one member of the couple might dream of using the embryos to expand their own family, even if it means raising the children in a fractured family situation. Other people look to religious beliefs that oppose discarding this "potential life," favoring donating to someone else over eliminating them altogether. There are parents who feel at peace with the family they have and are not in conflict about letting go of these clusters of cells-on-ice, and others who want to make a contribution by donating them to research. All options are acceptable from a medical and legal perspective. The problem comes when two people with equal investment in the embryos, have entirely different views on what to do with them.

According to Melissa Brisman, a reproductive attorney in Montvale, New Jersey, "an embryo is not considered a person," and is not entitled to the same respect as an already born child. At the same time, Ms. Brisman explains, the law generally states, "You can't force a person to procreate or parent against their will." Thus, when divorcing, a mother and father might both be expected to contribute to the custody and financial support of their children; but this is not the case for embryos. The law will almost universally side with the person who does not wish to use or donate the embryos.

While the law might make clear the rights of the parties involved in this area, it does not have an answer for the emotional fall-out. One party may be left feeling a sense of loss and guilt that they have "abandoned" the embryos that represent the possibility of hope and legacy and the other member of the couple may be relieved to let the embryos go. While one person may see embryo donation as a way to "pay it forward" after their own successful IVF, another may feel unable to separate from this genetic material, fearing the potential child is "theirs," and meant to be raised with their genetic siblings. Likewise, donating to research can be seen as furthering scientific inquiry or as destroying life and contributing to future questionable practices (like cloning).

The conflict over disposing of one's excess embryos is not unique to those who are divorcing. Couples in a stable relationship often disagree and have trouble coming to a mutually satisfying decision, but in a separation or divorce situation the ante is raised considerably. Fortunately there are professionals who can assist with this resolution. If embryo donation is a consideration, begin with your medical group to learn if your embryos would be acceptable for donation according to FDA standards. Talk to an attorney who is skilled in reproductive law, a specialty area that many family law attorneys are not familiar with. Find a mental health professional with experience in both assisted reproduction and conflict resolution. Lastly, take comfort in knowing that many people are grappling with this dilemma and there is no widely held right or wrong answer.

Judith Kottick, LCSW, is the resident mental health professional at IVF New Jersey. She is also a consultant to egg donor and surrogacy agencies and maintains a private practice in Montclair, New Jersey.

Marie Davidson, Ph.D. is a licensed clinical psychologist on the staff at the Fertility Centers of Illinois in Chicago.