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Frozen embryos: No specific laws apply in divorce cases

You and your spouse have been together for many years, but despite your best efforts, you've never been able to have a child. Over time, the trials you went through pushed you apart instead of bringing you together, and now you've found yourself in an unusual situation.

You have embryos preserved, and you'd like to use them. Your spouse doesn't want to, but you're going through a divorce and believe that it's your right to. What is the truth?

This is a difficult question. For one thing, you have to think about how it would affect your ex-spouse if you chose to have a child from those embryos later. Would they have to pay child support? Would they have custody rights?

The Connecticut Supreme Court did rule that previously frozen embryos are marital property. They can be destroyed, as well. In the case that reached the court, a couple had a contract that stated that they would have their frozen embryos destroyed upon divorce. The court ruled that the contract was enforceable. Without an enforceable agreement, it may not be as clear what can or should be done with frozen embryos.

So, what should you do if frozen embryos are a part of your case?

A lot of what happens will depend on any contracts you already have in place. For example, if you have a contract that either party may use the embryos but no support can be sought, then the court may approve and maintain that position. If you have a contract that states that embryos are to be donated upon divorce, then that may take place instead.

If there is no contract, then you're going to be in a more difficult position of having to negotiate. It would be best if you and your soon-to-be ex-spouse could negotiate for terms you're happy with moving forward. If you can't agree on what to do with the embryos that you have had frozen, then you may need to take your case to court, where there are not many previous rulings to look back on and see how the court will rule.

This is a relatively new area of law, and the truth is that embryos tend to be handled on a case-by-case basis. You will want to make sure your attorney is working closely with you to fight for your preferred outcome. They will do what they can to help you negotiate and come up with a reasonable solution.

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