Nearly 40 years ago, the world’s first IVF baby was conceived. For many couples, having a child on their own isn’t possible and turning to alternative methods of having a child is their saving grace. The success rate of IVF procedures has increased over the past 30 years, from 10% to 30% with more than 65,000 births resulting from assisted reproduction, and with that increase in success comes an influx of couples wanting to complete the treatment. As these numbers continue to increase, so do the potential complexities and legal implications.
Certainly not the first, Risa Levine and her ex-husband are just one example of a couple that went through the IVF procedure and, before they could conceive a child, split up. The couple was left with 4 frozen embryos to dispute over in the resulting divorce. Levine wanted to keep the embryos, but her ex-husband wanted them destroyed. Now, this isn’t your typical point of contention in a divorce proceeding and you may be wondering why this would even be an issue. A little history on the IVF process might be helpful.
In Vitro Fertilization (IVF) is a process in which eggs are extracted from a woman, manually fertilized with sperm in a laboratory dish (which creates an embryo), and then the embryo is transferred back to the female uterus. Embryos can be cryopreserved so they can be thawed and used at a later date. Herein lies the issue for divorcing couples. When you have a preserved embryo with the DNA of both spouses, what happens when one spouse doesn’t want to use it anymore?
In this case, the ex-husband didn’t want a child out there, presumably, that would legally require him to pay child support. That seems like a pretty fair argument but, at the same time, the embryos were half Levine’s and she still wanted the chance to have a baby of her own. Levine eventually conceded to her ex’s wishes and the embryos were destroyed.
Regulations Are Few and Far Between
What would have happened in court if Levine hadn’t agreed to destroy the embryos? Although it’s been around for nearly 40 years, it’s still a relatively new area that isn’t heavily regulated. Currently, Canada, France, Finland, Germany, and the UK are the only countries with laws and statutes covering the legal issues that surround fertility treatment.
Here in the U.S., the federal government has removed discriminatory barriers to access IVF treatments, requires laboratories to be certified and to report their data to the CDC, and 5 states have laws that offer guidance in terms of donated embryos, but everything else is pretty much fair game. Many clinics require consent forms, but since most couples going through the IVF process plan to stay together, what happens to the embryos when the couple splits aren’t issues typically addressed.
So, again, where does that leave couples who spend thousands of dollars to go through the process of freezing their embryos and then wind up getting a divorce? The big question is, what exactly is an embryo? Who owns them? It’s not just a matter of a property question in terms of who it belongs to; it’s also a social issue.
With Little Guidance from Legislation, Decisions Seem to Sway One Way Over Other
Levine isn’t alone. As more and more couples begin using IVF treatments, more issues are beginning to pop up surrounding embryonic custody once couples split up. These cases are gradually starting to make their way into the courts and they seem to be favoring one side over the other.
A Michigan judge ruled in favor of the husband in a similar situation and found that the husband, although the wife wanted to keep their embryos to possibly have more children, had a right not to have more children if he didn’t want to. In Washington, a couple formed embryos by using donor eggs with the husband’s sperm. When they divorced, the husband wanted to donate the embryos to a couple outside their state for adoption, but the wife wanted to raise the children on her own. The court again, sided with the husband. Just last year, a California judge ruled in favor of a husband to destroy embryos because the couple had signed a binding contract with the clinic, which called for their disposal in the event of divorce.
Although the majority of cases seem to favor towards the party wanting to destroy the embryos, a recent ruling shows just how split this topic is getting. Just this year, the U.S. Supreme Court refused to hear an appeal from an Illinois court, which ruled against Jacob Szafranski, who was trying to prevent his former girlfriend from using frozen embryos the two had created together during their relationship.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law