A recent case filed in San Francisco by a divorced couple over custody of frozen embryos may lead to a new law in the state because the issue; so far, has not been addressed legally. Simply put, this is a not a custody dispute for a living, breathing child but for potential children in the form of cryogenically preserved embryos. San Francisco family court now has to decide what happens to these frozen embryos when one divorced spouse wants them destroyed while the other doesn't.
The couple in the center of this challenge discovered 10 days before their wedding five years ago that the wife had breast cancer. Since she was 41-years-old at the time, the couple determined created five embryos and preserved them cryogenically to address any issues of infertility that might be the result of treatment.
After the wife recovered she was willing to start a family via a surrogate, but her husband seemed hesitant. Then, not only did he file for divorce, but he also petitioned to destroy the frozen embryos, eliminating the wife's only chance to raise a biological child.
Currently, no law addresses this issue, so it is up to the court to decide if the wife has a fundamental right to procreate. Attorneys for the husband are arguing for destruction based on a law which declares that implanting an embryo without the consent of embryo's provider is a felony. Therefore, implanting an embryo without the consent of ex-husband in this case would be a crime.
Unique as it is, the custody case is even more complicated because the couple signed an agreement with the agency that preserved the embryos which states that the embryos would be discarded if the couple divorced. The wife's lawyer is arguing that the agreement was between the couple and the agency not between the husband and the wife. It will be interesting to note how this San Francisco court decides this custody dispute because it will likely set a precedent for similar issues in future.
Source: CBS News, "Frozen embryos at center of nasty divorce in San Francisco," July 14, 2015