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Are frozen embryos a child custody or property division matter?

With the advances in reproductive technology, more people here in New Jersey and across the country are freezing embryos for later use. During the marriage, there is more than likely little controversy about this, but if a couple divorces, what happens to the frozen embryos? Should they be dealt with under child custody laws or property division laws?

A number of courts across the country are having to deal with these questions. In a recent appellate decision in another state, the court ruled that the frozen embryos are property and awarded one of the two to each party. If the now ex-wife wishes to use them, she will have to obtain the written consent of her ex-husband.

The embryos are the Missouri woman's only opportunity to have a child of her own, and reports indicate that she will appeal the decision to her state's supreme court. The court ruled the way that it did because once a child is born from one or both of the embryos, her ex-husband could be liable for child support and forced into being a parent. As for courts in other areas of the country who have addressed this issue, some agree with the Missouri appellate court. 

As the number of couples who freeze embryos increases, these issues will more than likely need a more decisive resolution. The question of where life begins is one that remains the subject of intense debate not only in legal circles, but also in medical and scientific circles. For the time being, it will be up to individual states, like New Jersey, to determine whether this issue belongs under property division or child custody.

Source:, "Missouri Couple In Custody Battle Over Frozen Embryos", Nov. 17, 2016

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