The Court of Special Appeals Weighs in on the Frozen Embryo Issue

AvatarCasey Florance, Principal

In my last post (Who gets the Frozen Embryos in the Divorce?), I explored how the Court might handle the disputed disposition of frozen embryos upon the divorce of the parents-to-be.

I hypothesized that the Court might view embryos as marital property, and I recommended consulting a lawyer as part of the assisted reproductive process to ensure that a clear and enforceable contract is in place regarding the disposition of any frozen embryos upon divorce or either party’s death. 

The Court of Special Appeals of Maryland has since answered the question I posed, in a reported opinion issued on April 29, 2021.  In Jocelyn P. v. Joshua P. (WL 1684645), the Court held, as a matter of first impression, that frozen embryos should be given special consideration in light of their potential for human life, and in light of the fundamental and coextensive rights of the embryos’ creators to decide “whether to bear or beget a child,” and accordingly the embryos should not be treated simply as property.  The Court also clarified and set forth the process that the trial courts should follow when addressing the disputed disposition of frozen embryos, using a blended contractual/balancing-of-interests approach.

First, trial courts need to consider the parties’ preferences as set forth in any existing agreements. This may include oral agreements between the parties, and would certainly include an express agreement drafted by the parties’ attorneys.

The Court was careful to caution that trial courts should not consider, however, “boilerplate language in third-party form contracts [such as the form contracts that many fertility centers utilize] that lack expression or direction from the progenitors” because such form contracts “will not qualify as an express agreement for this purpose.” This lends further support for my prior recommendation to engage an attorney to draw up a separate agreement with your partner as part of the assisted reproduction process, so that your and your partner’s intentions and desires are clear and will therefore likely be upheld by a court in the event of a later dispute. 

If there is no express agreement regarding the disposition of the frozen embryos, then the trial courts are directed to seek to balance the competing interests of the parties using six different factors, including the intended use of the frozen pre-embryo if preserved, the parties’ original reasons for undergoing IVF, and the potential burden on the party seeking to avoid becoming a genetic parent. 

Further, the Court of Special Appeals has directed that the trial courts should specifically not consider financial or economic distinctions between the parties, the number of existing children, or whether “reasonable alternatives” such as adoption may be available to the party seeking to become a genetic parent.  

Jocelyn P. v. Joshua P. is a lengthy and interesting read for divorce lawyers, and makes clear that this area of dispute is ripe for invasive and costly litigation when parties do not agree.

So how do you avoid this quagmire if you are thinking of using assisted reproductive technology? See a lawyer and have a clear contract in place between you and your partner regarding the disposition of any fertilized embryos. It will cost time and money upfront, but could save you a boatload of both in the future. 

Who gets the Frozen Embryos in the Divorce?

AvatarCasey Florance, Principal

Scrolling through the newsfeed on my Facebook page recently brought me to an article about the actress Sofía Vergara’s long legal battle with her former fiancé, Nick Loeb, over the disposition of their frozen embryos.

They had apparently planned to have children – and gone through the beginning stages of the process to do so – but then broke up before any of the embryos were brought to term. At issue in the multiple lawsuits across multiple states was the fiancé’s desire to keep the frozen embryos and bring them to term without Vergara’s consent. Vergara opposed these requests and sought court intervention to stop his unilateral actions.  

Like so many of the issues we deal with in divorce, what is supposed to be an exciting and happy time for a couple can quickly turn into an expensive and protracted dispute if the relationship sours. Compounding the issue here is that technology develops at a much faster pace than our laws do, despite many of our legislators’ best efforts. As a result, if you are considering expanding your family using assisted reproductive technology, you may want to consult with a lawyer as part of the process.  

Most fertility clinics have expansive paperwork that each hopeful parent must complete as part of any assisted reproductive technology process. Included in the many decisions the hopeful parents must make are what should happen to any fertilized embryos following the process. Will the extras be stored? Disposed of? And what should happen to them if one party wants to dispose of them but the other party does not? What about if one party were to pass away? Can the other party keep them and use them as he or she sees fit?

If the hopeful parents have elected to keep the fertilized embryos stored, and then their relationship ends, what happens to the embryos then? And can a court intervene?

What can the Courts do?

In Maryland, the court would not have jurisdiction to make a custody decision regarding frozen embryos. The court can only make custody decisions with regard to a “child” which is defined in multiple places in our Family Law statutes as an “individual under the age of 18” (with some exceptions). Frozen embryos are not children because they have not been born yet so, political/religious stances notwithstanding, a custody action is of no utility.

If the hopeful parents were married when the embryos were created, then the embryos would arguably be considered “marital property” at the time of the divorce – which is defined as property, however titled, acquired by one or both parties during the marriage. If the parties’ contract with the fertility clinic is not clear on the disposition of the embryos upon a divorce, then the court could have the power to determine ownership of the embryos under the marital property statute. Whether the court would actually do it, however, given the ethical and legal ramifications attendant to granting one parent the ability to create a life that the other parent has not consented to, remains to be seen. 

How do you avoid this possible quagmire? See a lawyer and have a clear contract in place between you and your partner regarding the disposition of any fertilized embryos. It will cost time and money upfront, but could save you a boatload of both in the future.

For more information, contact Casey at 301-657-0162 or cwflorance@lerchearly.com.

Casey Florance Admitted to Fellowship in the American Academy of Matrimonial Lawyers

AvatarDonna E. Van Scoy, Principal

Divorce attorney Casey Florance has been admitted to fellowship in the American Academy of Matrimonial Lawyers (AAML).

One of only 35 Fellows throughout Maryland, Casey is now among those generally recognized by lawyers and judges as preeminent family law practitioners with the highest level of knowledge, skill, and integrity.

For more information, see the AAML website: https://aaml.org/page/WhyAAML.

Casey Florance is a family law and divorce attorney who represents clients in all aspects of family law, including separation, divorce, custody, property, support, post-judgment issues, and domestic violence matters in Maryland.