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Who Controls Leftover Eggs, Sperm And Embryos Once A Baby Is Born?

Having a family is an important goal of many American women, and this desire is reflected in the fact that over 70 percent of women become parents by the age of 34. However, the influence of the economic realities of raising a child to the age of 18, coupled with the lingering effects from the recession in 2008, pushes many women to significantly delay having children or to explore adoption as an option to grow their family. It is becoming more common for women to first decide to and make efforts toward getting pregnant after age 40, but these women also often face fertility issues that require medical intervention if they want to carry a baby themselves. These factors frequently involve family law issues as couples navigate how to legally and ethically get the help they need to start a family. A recent article on Vox.com looks at the growing trend of using donated frozen embryos by people needing assistance conceiving a child. This is a complicated and still emerging area of the law because many states do not have statutes that address potential parental rights of the donors over any children that are born. Further, some view the embryos as children and subject to the same rules that govern adoptions, but that is not the case. Florida, recognizing that reproduction methods are rapidly changing, does have laws on the parental rights of individuals who donate reproductive materials for someone else’s use. An overview of what rights, if any, the donors retain if a child is born, and permitted disposal of stored genetic materials will follow below.

Donated Eggs, Sperm, and Pre-embryos

When a couple looks into fertility options once it is apparent natural conception is not possible, the usually try, at least initially, to use as much of their own genetic material as possible. This means there is usually a mixture of donated eggs and/or sperm that is used to create an embryo that is implanted in the mother in hopes of generating a viable pregnancy. While the donations are often anonymous, there are situations where the prospective parents know the person who contributes the egg, sperm, or embryo. Any donor of eggs, sperm, and pre-embryos automatically relinquishes all parental rights and obligation for any child born as a result. Additionally, any child born to a married couple from in vitro fertilization is legally presumed to be their child as long as they consented to the procedure in writing. Further, the couple acquiring the genetic material is only able to pay for costs related to the donation, which means it is not legal to sell an embryo, just as it is not legal to sell a child.

Disposition of Eggs, Sperm, and Pre-embryos

Once a couple authorizes the collection and storage of eggs, sperm, and pre-embryos, an important issue emerges – what to do with any unused genetic materials. Florida law requires all couples in this situation to create a written agreement with their doctor about what to do with the eggs, sperm, or embryos in the event of divorce, death, or unforeseen circumstance. If there is no agreement, remaining eggs and sperm are controlled by the person who contributed them, and the couple jointly retains authority to decide how to dispose of any useable genetic material. In addition, if one member of the couple dies, the surviving spouse keeps all rights to control any eggs, sperm, or embryos. Finally, if a couple stored genetic materials and one member later dies, any child born from genetic material implanted after the death cannot inherit from the deceased’s estate unless a will specifically provides for the child.

Talk to a Family Law Attorney

The ability of medical technology to assist with the conception, gestation, and birth of children is changing everyday, and consequently creating many new legal questions without easy answers. If you have questions about in vitro fertilization, donated embryos, or surrogacy, speak to a family law attorney to learn what you need to do to secure your parental rights. The Fort Lauderdale law firm of Joyce A. Julian, P.A. can help you with all your family law needs. Contact the office for a free consultation.

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