Aaron & Aaron, Attorneys at Law
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Reaching a decision about frozen embryos during a divorce

Couples in South Carolina who have IVF treatments may not think about what may become of their embryos if they divorce. Usually, facilities have couples sign a contract that specifies whether they want their embryos donated or destroyed in the case of divorce. Keeping the embryos frozen may be another option. However, these contracts might not be legally enforceable.

If a couple cannot agree on the fate of their embryos, it could result in a long court case. Estranged couples need to keep up with their payments to the storage facility so the embryos they're fighting over don't end up being destroyed.

There is not much legal precedent regarding what to do with embryos in a divorce, and unlike child custody, there are few laws. Under the law, embryos are considered to be personal property, much like a house or vehicle. However, the decision concerning the ownership of the embryos can adversely affect one of the spouses. Courts generally take the position that a person cannot be compelled to become a parent. However, if someone is unlikely to become a biological parent without the embryos, the court is likely to take this fact into account.

The best solution regarding the fate of their embryos would be for a couple to reach an agreement that suits both of them. This compromise might be accomplished through mediation. However, each spouse might have a firm position and be unwilling to negotiate. If this is the case, then litigation is probably necessary. The downside of taking the matter to court is that the process is inherently adversarial, and if a couple isn't happy with the judge's decision, they may be unable to change it. Therefore, couples should also try negotiation first before turning to litigation on issues like child custody, visitation and division of other types of property.

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