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Who gets “custody” of embryos in a divorce

The increasing popularity of in vitro fertilization has led to a new family law debate over the “custody” of remaining embryos. This issue can come up in divorce proceedings, as well as in instances where one partner dies or is otherwise incapacitated. North Carolina individuals facing a divorce with remaining embryos in the mix may be curious about their rights in these cases. 

Typically, certain decisions about what will happen to remaining embryos are made at the clinic and are part of the routine paperwork. However, enforcing or questioning these decisions can be another situation altogether. The embryos may include genetic materials of one or both parents, making it contentious in many complex ways.  

Here are a few ways individuals can plan ahead to avoid dicey family law issues if choosing to pursue IVF: 

  • Consider having some eggs fertilized by a sperm donor, rather than the current partner. In case of a divorce, this will allow some of the eggs to still be used if needed. 
  • Discuss the potentiality of divorce when deciding whose genetic material to combine in the embryos. 
  • Create a plan for what will happen with unused embryos and agree to it in advance. 

For those who do not preplan, or who have a situation that is being called into question by an ex-partner, this can be a very emotional and challenging situation to face. It is important for North Carolina individuals in this predicament to know that they are not alone, and that there are legal avenues to resolve these issues. Discussing questions and concerns with a family law attorney is an important first step. 

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