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What happens to frozen embryos in divorce?

On Behalf of | Apr 11, 2023 | Family Law

Getting divorced in Virginia means dividing up most of the property you and your spouse acquired during your marriage. But things in your possession seem like they cannot be treated the same as the retirement accounts, the cars and the furniture.

Pets are a common example. Despite being beloved companions for most of us, dogs, cats and other animals are considered “chattel” or property under Virginia divorce law. There is no such thing as “pet custody” that can be enforced by a court order. Divorcing pet owners must decide who keeps the animals, and if they want to unofficially “split custody” in some way.

Another example of an “object” that most people would say is much more than that is a frozen human embryo created as part of an effort to conceive a child. A divorce controversy involving embryos recently resulted in a decision in a Virginia court that the couple could partition the embryos between them — or the court could decide the matter if the spouses could not.

The story of the embryos

The couple in this case used in vitro fertilization to produce three embryos. They used one of them to conceive their daughter and kept the other two cryogenically frozen. The documents they signed at the fertility clinic did not mention what would happen to the remaining embryos if the couple ever got divorced. When they did split up, their property settlement agreement said neither party would remove the embryos. But later, the ex-wife underwent cancer treatment that left her infertile. She asked her ex-husband if she could use the embryos and he refused.

The ex-wife eventually sued, asking the court to give her the embryos or partition them. At first, the court sided with the ex-husband, who argued that the embryos were not chattel under Virginia law, and that federal law prohibited the sale of embryos. But after the ex-wife filed for reconsideration, the court reversed itself. The judge found that nothing in the law prevented partition of frozen embryos.

Every property division is different

While this is an unusual situation, every divorcing couple needs to deal with property division, unless they have a prenuptial agreement. This requires dedicated assistance from an experienced divorce attorney.