Divorce and frozen embryos: a Virginia case

On Behalf of | Jun 7, 2024 | Child Custody

What happens when a couple divorces after working with assisted reproduction specialists to have human embryos frozen?

In a current Virginia case, a couple conceived one living child and left two embryos in frozen storage. Unfortunately, their marriage fell apart shortly after, and the couple is now battling over the issue of what should happen to the remaining embryos. 

The former wife wants to use the embryos to conceive another child, but the former husband is deeply opposed. Normally, such cases are brought in family court – but this one has been placed before the court by the former wife as a partition action, in the same way that one might seek to resolve issues with a contested piece of real estate.

Virginia court ruling on the disposition of embryos

In a lower court ruling, a judge declared the human embryos “chattel.” In essence, the court said that the embryos are nothing different than property. That decision is currently being appealed by the former husband, whose filings point out that courts throughout the nation have consistently treated human embryos as distinctly different than mere “things,” like houses and cars, that can simply be divided.

The couple could have signed an agreement that would have addressed the disposition of the embryos, stating whether they should be destroyed or donated, either before undergoing their fertility procedures or during their divorce – but they didn’t. That oversight has ultimately led to this ongoing legal battle that has the potential to keep them entangled in each other’s lives for many more years to come. 

This case is illustrative of why experienced legal guidance should be obtained before any major family decision that could potentially affect your rights in the future. Prenuptial and postnuptial agreements, as well as divorce negotiations, have to be handled carefully when couples have unique assets and property rights are at stake.




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