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Divorce law still developing around in vitro fertilization

Social and technological developments tend to occur more quickly than changes in family law, but courts and legislation usually catch up over time. The U.S. Supreme Court's recent decision in Obergefell v. Hodges, striking down bans on same-sex marriage, is a prime example.

Another area of family law that is gradually developing involves freezing embryos produced by in vitro fertilization. For various reasons, more and more spouses and unmarried partners are using IVF to conceive children. Sometimes, though, the couples get divorced or separate before the frozen embryos are used, and this can result in legal disputes over who has control over the embryos.

In many cases, partners who plan to use IVF sign consent forms at the clinic. The consent form may stipulate that the embryos will be destroyed in the event that the parties separate or divorce.

Courts have been inconsistent about these kinds of cases, however. For example, in one case, a man participated in IVF and signed a consent form saying that his partner could keep the embryos in the event that the pair split up. When they did separate, the man disputed his partner's right to the embryos, and a court agreed, saying that to force a person to procreate against his wishes would be in violation of public policy.

In other cases, use of IVF-created embryos is the only feasible option for a woman to have a child who is biologically related to her. A court may then rule that a woman has a right to the embryos, even if the man disagrees.

Another potentially conflict-reducing option was recently pointed out on Minnesota Public Radio: freezing unfertilized eggs, not embryos. That way, spouses and partners can leave embryos out of the equation in the event that the relationship ends.

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