Art’s Unintended Consequences In Divorce

Assisted Reproductive Technologies (ART) are often considered as a way for Intended Parents to create a family. Sometimes Intended Parents separate and file for divorce, and their good intentions lead to complex and difficult choices. When Intended Parents utilize ART, they create genetic material that may be considered property by a court if those two people divorce. This property includes frozen eggs, sperm and embryos. It then becomes necessary to determine the use, and/or value of this property, as it will continue to exist even if the parties’ relationship with each other does not. Intended Parents should be mindful of this possibility, and proactively address the use and/or storage of their genetic material at all times. The division of genetic material in a divorce is one of the most unique and sensitive property disputes a court can face — working with a skilled Los Angeles complex property division attorney who understands both California community property law and the nuances of ART is essential to protecting your interests.

Before Intended Parents Utilize ART:

A post-nuptial agreement or contract designating the use and disposition of stored genetic material can avoid many of the pitfalls that arise if divorce occurs. For example, a couple can agree that any frozen embryos will require both parties’ consent for future use, or that the genetic material should be destroyed or donated in the instance that they separate. Clinics often require parties to sign numerous consents, authorizations and/or disposition agreements. Because they vary in their depth and completeness, Intended Parents should be overly cautious and insist on a clear and comprehensive agreement between the parties. Before undergoing any ART procedures, consulting a Los Angeles prenuptial agreement lawyer — if unmarried or not yet married — or a postnuptial agreement lawyer Southern California — if already married — can help you draft a legally enforceable agreement that clearly defines the disposition of all stored genetic material. To further help ensure enforceability, each party to the agreement should be advised by independent counsel. This is especially important if either party wishes to avoid the use of their genetic material for purposes of procreation after separation.

When Intended Parents File for Divorce:

It is important to address the use and control of genetic material as early as possible in a dissolution proceeding. Some courts have found a right to value genetic material as property. Other courts have taken infertility treatments into consideration when determining the lifestyle of the parties, which is an important factor for spousal support calculations. If infertility treatments and the associated costs are factored into the lifestyle of the parties, a Los Angeles spousal support attorney can help you ensure those financial realities are properly reflected in any spousal support determination. The greatest of unintended consequences could occur, however, if these assets are not identified and awarded. Under such circumstances, the possibility remains that a clinic, unaware of the parties’ changed marital status, facilitates the use of stored genetic material. In this scenario, either party could unknowingly become an unwilling parent. Until, of course, they receive a request for child support. In the event that stored genetic material is used without both parties’ consent and results in a child, a Los Angeles paternity attorney can help establish or contest legal parentage, while a Los Angeles child support attorney can assist with any resulting support obligations. Accordingly, fertility clinics and/or storage facilities should be notified immediately upon the commencement of a divorce proceeding.

There is no consensus amongst courts with respect to the disposition of genetic material. However, if you are either contemplating utilizing ART or divorcing after having created and/or stored genetic material, consulting with an attorney may help you avoid unintended consequences. To speak with an experienced divorce attorney Los Angeles at the Reape-Rickett Law Firm about ART-related property division or any other family law matter, contact us or call (888) 851-1611 today.