What happens to frozen embryos in a New Jersey divorce?

The “infertility” dilemma remains an open one for divorcing couples

On Monday, the LA Times ran a thought-provoking story about a San Francisco couple’s court battle over the fate of five frozen embryos. The mother, a pianist and “part-time anesthesiologist,” decided to create and freeze the embryos after being diagnosed with breast cancer no long after her marriage to the father. Her struggle with cancer left her infertile. Now the couple is divorcing; the father wants to destroy the embryos while the mother wants to implant them in a surrogate.

In essence, J.B. and M.B. have agreed only that on their divorce the decision in respect of control, and therefore disposition, of their cryopreserved pre-embryos will be directed by the court. In this area, however, there are few guideposts for decision-making. Advances in medical technology have far outstripped the development of legal principles to resolve the inevitable disputes arising out of the new reproductive opportunities now available. For infertile couples, those opportunities may present the only way to have a biological family. Yet, at the point when a husband and wife decide to begin the in vitro fertilization process, they are unlikely to anticipate divorce or to be concerned about the disposition of pre-embryos on divorce. As they are both contributors of the genetic material comprising the pre-embryos, the decision should be theirs to make.” …. “[T]he Massachusetts Supreme Judicial Court as well as our Appellate Division have declared that when agreements compel procreation over the subsequent objection of one of the parties, those agreements are violative of public policy.”

We agree with the Tennessee Supreme Court that ‘[o]rdinarily, the party wishing to avoid procreation should prevail.’ Here, the Appellate Division succinctly described the ‘apparent’ conflict between J.B. and M.B.: In the present case, the wife’s right not to become a parent seemingly conflicts with the husband’s right to procreate. The conflict, however, is more apparent than real. Recognition and enforcement of the wife’s right would not seriously impair the husband’s right to procreate. Though his right to procreate using the wife’s egg would be terminated, he retains the capacity to father children.”

Again, we don’t know. We’ll continue to watch the San Francisco case, and any developments back here in our own court system, for any hints as to which way family courts could come down.