David and Annissa wanted children, but Annissa had blockages in her Fallopian tubes. So, they decided to pay for in vitro fertilization (IVF). During their IVF procedure, they elected to have several excess embryos frozen in case the initial procedure was not successful. Multiple embryos were frozen and the couple eagerly awaited what they hoped was their first child.
Fast forward several years. The IVF procedure was not successful, and David and Annissa are in the middle of a divorce proceeding. Annissa still wants to have children using the frozen embryos, but David is not excited about the prospect of being a parent and does not want to deal with custody or child support issues in the future with his soon to be ex-wife.
As more and more couples turn to IVF for help raising a family, attorneys in Georgia are increasingly seeing cases involving frozen embryos. What does the law state, and what should you do if you are starting a divorce and you froze embryos in the past?
There is a lot at stake with IVF technology. Given that the average cost of a single procedure can be anywhere between $12,000 and $17,000, it is understandable that couples want to have a firm understanding of how their frozen embryos can affect their divorce case.
Currently, some states require that in the case of a divorce, any frozen embryos must be destroyed. Georgia does not require that. While couples do sign legal consent documents at their fertility clinic to allow for the IVF procedure, most of those documents do not address what will happen to any excess embryos if the couple’s marriage is dissolved.
Since Georgia law is not specified in this instance, currently, frozen embryos are considered joint marital property. Both parties need to come to a consensus about what will happen to any viable frozen embryos as part of the divorce settlement.
There are two common scenarios. In the first, one parent wants to have a child, but the other is no longer willing to continue with the implantation because of the divorce. In this case, perhaps one parent is willing to have the embryos donated or discarded but does not want them used to have a child. The court is not about to force someone to be a parent against their will unless a strong case can be made that this is the last possible opportunity for one party to have children.
Keep in mind that if the father is successful in keeping the embryos viable and finding a surrogate, the mother, in this case, cannot walk away from her parental responsibilities as the children would be biologically hers. There will need to be an understanding from all parties as to future legal obligations and liabilities in this case. This would also be the case if the situation was reversed, and the mother wanted to go through with the procedure but the father did not want to have children.
The second common scenario is where both parents decide to divorce, but continue with the IVF procedure. In this case, the same laws that apply in natural childbirth would also be applicable here. Both parents would need to have a custody and visitation agreement in place, and child support would be calculated.
If you are in Henry, Clayton, or Fayette County, or live in the Atlanta metro area, and need advice about a divorce involving IVF embryos, contact Family Matters Law Group today. With the law in Georgia still being written in this area, you need an experienced attorney who can fight for your best interests in court. We are ready to listen and help you find the best solution in this situation.