Nowadays, more and more same-sex couples in California are using assisted reproductive technology (ART) to start a family. This advanced technology can involve in vitro fertilization (IVF) and the freezing of unfertilized eggs or fertilized embryos.

Pursuing these options for starting a family can be exciting for many couples. However, what happens to these embryos if the same-sex couple makes the difficult decision to divorce?

Couples could face significant challenges

Using ART and freezing embryos provides same-sex couples with the option to have a biological child. However, a biological embryo or child can potentially create a complicated custody situation in a divorce.

A recent article in The Pride discussed the challenges that divorcing same-sex couples might face if they take this route. Some of the primary challenges couples face include:

  1. Parental rights: Same sex-couples often know how complex it can be to obtain legal parental rights. And in most cases, embryos are considered children – not property. Usually, only one parent donates an egg or sperm. That means there is only one biological parent. However, the other parent may also still have a claim to parental rights in some cases, if they had the intent to become a parent. On top of that, it can be difficult for courts to determine who has parental rights to the frozen embryos.
  2. Disagreements: During a divorce, spouses might disagree about what should happen to the embryos. One might want to destroy the embryos to avoid custody or child support issues, while the other wishes to keep them. Or, what if both spouses want the embryos? Regardless, determining what will happen to the embryos can be a complex decision that can lead to an incredibly emotional dispute.

It is important to note that California precedent determines that if even one parent does not want the embryos to be used, they will not be. This prevents individuals from becoming parents against their will.

Establishing a legal agreement is essential

Moving forward with ART involves a considerable amount of paperwork, but there is one more document that same-sex couples should consider if they wish to use ART. It might be difficult, but couples should create a legal agreement that outlines their wishes of what should happen to the embryos in the event of a divorce or separation.

Divorce is already stressful enough and determining these issues can be even more so. But having a legal agreement to guide couples can help make these issues significantly easier in the event of a divorce.