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Embryos and Divorce


Going through a divorce with children of any age can be emotional and complicated, regardless of whether the separation was amicable or contentious. Fortunately, there are state laws in place that help ensure that couples come up with a custody arrangement or visitation schedule that is in the best interests of the children. The issue becomes even more complicated, however, when the children in question have not yet been born, but remain embryos that were created using in-vitro fertilization (IVF) and later cryogenically frozen. Florida is one of the few states that has adopted laws specifically regarding the disposition of frozen embryos after a divorce, but because this is still an evolving area of the law, it is important to speak with an experienced child custody attorney as soon as possible if you are facing these types of legal issues.

Florida Law  

In Florida, before a couple can undergo in-vitro fertilization, state law requires that the parties, including the treating physician, enter into a written agreement that provides for the disposition of the eggs, sperm, or pre embryos in the event of a death or divorce. These agreements are considered legally binding. However, the statute does not list the options available to the couple, such as destruction of the embryos, adoption, implantation, or joint custody. Furthermore, the law does not provide instructions for the practical application of how decisions regarding the disposition of an embryo can be held jointly if a couple divorces.  Fortunately, there are additional provisions that help clarify other related issues.

If there is no written agreement, all remaining sperm or eggs will stay under the control of the individual who provided them. Furthermore, all decision making authority regarding how the pre embryos will be disposed of will be held jointly between the parties. If one of the parties passes away, any remaining pre embryos, eggs, or sperm will remain under the sole control of the surviving party. Finally, any child that is conceived from the sperm or eggs of a person who later dies before the transfer of the sperm, eggs, or pre embryos to a woman’s body will be ineligible for a claim against the deceased’s estate. The only exception to this rule is in cases where the child has specifically been provided for in the decedent’s will.

Contact a Dedicated Fort Lauderdale Child Custody Attorney Today 

Although Florida’s laws regarding IVF and divorce are helpful, there are still a variety of unanswered questions regarding who will retain custody of a couple’s pre embryos in the absence of an agreement and in the event of a divorce. For this reason, it is especially important for those who are considering IVF or are already facing a disagreement about the disposition of pre embryos, sperm, or eggs, to call 954-945-7591 as soon as possible to speak with experienced family law attorney Sandra Bonfiglio, P.A. A member of our legal team is standing by and eager to help you through every step of your case.



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