October 27, 2020 The Newspaper Serving LGBT Los Angeles

COLUMN: When Same-sex Parents Divorce, Who Gets Custody of Frozen Embryos?

By Debra R. Schoenberg, Esq. 

The miracles of modern medicine can offer the gift of life to many same-sex couples that want to start a family. But the success of cutting-edge technology can also lead to heartache if a couple goes through the process of freezing embryos, only to have the marriage deteriorate during the process. If one partner wants to donate the embryos but the other still wants to conceive the child, many legal issues can arise, complicating an already stressful situation. There are many ways to help people start a family, but when science and heartbreak collide, whose rights win out?

To conceive a child, same-sex couples often turn to assisted reproductive technology (ART), which includes artificial insemination, egg donation, implantation of frozen embryos or the use of a surrogate to conceive a child. The new technology gives those who cannot conceive or are having issues conceiving, an opportunity to have a child. Frozen embryos are part of the scientific breakthrough that allows same-sex couples and infertile parents to have biological children. However, every state has different laws regarding embryos and people are wondering whose rights will win out when there are custody issues regarding these embryos. 

According to the Seattle University Law Review, couples have argued that they have ownership rights to frozen embryos due to their role in the creation or through their status as a legal parent. In the case of same-sex couples, some choose to have either party submit eggs or sperm to create embryos. A donor then supplies the additional material, and the couple ends up with frozen embryos that could have either party’s genetic makeup. 

When same-sex couples divorce, courts are now presented with the question as to how to establish parental rights for the embryos when only one partner may be the biological parent. This issue is further complicated because one person may want to keep the embryos to conceive a child, and the other may want them destroyed as a result of the divorce. These types of cases are taken to court, where a judge will rule who has the right to claim the frozen embryos.

We can expect to see a lot of similar cases emerge as ART becomes more successful and more widely used. One of the best ways to ensure that the rights of everyone involved are protected is to execute a legal agreement between the couple, outlining the wishes of both parties in the case of a divorce. Like a prenuptial agreement, it would set conditions for what would happen in the worst-case scenario. Medical providers can assist future parents by having them execute a plan before using ART. Taking the time and effort to clearly state the rights and obligations of all parties before going through the long process pays off in the long run. 

About the Author – Debra Schoenberg is a family law attorney based in the Bay Area. She established her firm more than thirty years ago, accruing vast experience and expertise in the highly sensitive and complex practice areas of divorce, child custody, and division of property. Ms. Schoenberg has established a professional reputation for thoroughness, strategic thinking, keen attention to detail, loyalty, and dedication to client service. To learn more, go to: www.sflg.com 

Related Posts

Free Drive-Up HIV Testing

October 25, 2020

October 25, 2020

In 2019, 245 people were newly diagnosed with HIV in Orange County. The HIV epidemic remains, despite a pandemic changing...

WeHo Launches “Masks Are…” PSA

October 25, 2020

October 25, 2020

The City of West Hollywood has had a mandatory face-covering requirement in effect since late May 2020 and has been...

AIDS Memorial Quilt Virtual Exhibition

October 15, 2020

October 15, 2020

The National AIDS Memorial is announcing a virtual exhibition of the AIDS Memorial Quilt (the Quilt) that will feature more...

Tech Companies Offer Hormone Therapy At Home

October 4, 2020

October 4, 2020

Plume, the first health tech company built for the transgender community, announced that it has been named Preferred GAHT Provider...

Trans Lifeline, A Transgender Crisis Hotline Run By Trans People

September 27, 2020

September 27, 2020

Trans Lifeline, which describes itself as the only crisis hotline for trans people operated entirely by trans people, is flooded...

Actress Niecy Nash Comes Out And Introduces Wife To The World

September 3, 2020

September 3, 2020

Actress/comedian Niecy Nash shocked the world after announcing her marriage to a woman.  The 50 year old “Claws” and “Reno...

AIDS Walk Los Angeles 2020

August 27, 2020

August 27, 2020

AIDS Walk Los Angeles (AWLA) is the world’s first walk to fight HIV and AIDS. 35 years ago, a group...

Date Night In Times Of COVID

August 23, 2020

August 23, 2020

As things to do in times of COVID-19 dwindle down to staying in your home and watching a specific streaming...

7 Intimacy Tips To Keep Long-Term Relationships Healthy

August 23, 2020

August 23, 2020

LGBTQ+ couples around the world are feeling the financial pressure from the COVID crisis and many couples are feeling the...

The Best Cancer Treatment You Have Never Heard Of – Hyperthermia Cancer Institute

August 19, 2020

August 19, 2020

The Hyperthermia Cancer Institute, is a cancer therapy approved by the U.S. Food and Drug Administration to be used with...

August Celebrated As Anal Pleasure Month

August 9, 2020

August 9, 2020

In 2012 August was declared to be anal pleasure month which is unbeknownst to many people. Good Vibrations, an adult...

6 in 10 Queer Men With COVID Symptoms Hide Them From Partners

August 9, 2020

August 9, 2020

COVID 19 is affecting everything from businesses to government and now it is taking a toll on people’s sex lives....

CancerCare Offers Online Support to LGBTQ+ Community

August 5, 2020

August 5, 2020

CancerCare helps individuals, families, caregivers and the bereaved cope with the emotional and practical challenges of cancer. Its free services...

How COVID-19 Impacts Black LGBTQ+ People

May 15, 2020

May 15, 2020

Amidst horrifying racial disparities, “COVID While Black and Queer” is a new data initiative that will shine a light on...

Lawmakers Ask State and Counties to Collect Data on LGBTQ Community and COVID-19

April 14, 2020

April 14, 2020

Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria, Chair and Vice-Chair of the California Legislative LGBTQ Caucus respectively, sent...