Who Gets Custody of the Frozen Embryos After Divorce?


Divorce is a complex legal process through which spouses may unlink their lives and, as they navigate their way through it, they may find that some aspects of this division are far more challenging and less clear cut than others. If you are getting a divorce and have frozen embryos, for example, you may be wondering who gets to keep them. Since this is still a relatively new legal issue, however, precedents are still being set throughout the country.

When Spouses Fight Over the Custody of Their Frozen Embryos

In 2019, the Connecticut Supreme Court handled a case that involved divorcing spouses who disagreed on what should be done with their last remaining frozen embryo. The woman believed it should be discarded, whereas the spouse believed it should be saved and adopted by another couple. The trial court initially determined that the agreement to discard them was unenforceable, but the Supreme Court later reversed that order, allowing the woman to have them discarded.

In California, the American Bar Association (ABA) stated that a woman could not use any of the frozen embryos a couple had stored after divorcing her spouse. The consent of both intended parents is necessary for an embryo to be used in the aftermath of a divorce.

In 2018, the Colorado Supreme Court initially ruled in favor of Drake Rooks. Drake and his spouse, Mandy Rooks, had 6 viable embryos at the time of their divorce. She wished to keep the embryos and possibly implant them in the future to continue to grow her family. Drake believed he should not be forced to continue to have more children if his spouse¬†kept and implanted the embryos. The Colorado Court of Appeals originally ruled in favor of Drake Rooks, but the Colorado’s Supreme Court reversed the court of appeals’ decision. The Donor Colorado¬†case was sent back to a district court under the guidelines and considerations of intended use of the embryos, evident ability to become a genetic parent through other means other than the disputed embryos, use of the embryos as unfair leverage through the divorce process, and emotional and financial hardship for the party avoiding becoming a genetic parent. These guidelines have set significant precedent for litigated cases in district courts of Colorado regarding frozen embryos during divorce and child custody proceedings.

That said, in other cases throughout the country, courts have ruled in favor of women who believed their frozen embryos were their last chance at starting or growing their family.

Given the newness of these laws, this is not an issue for which there is a single, straightforward answer. It will ultimately depend on the details of your case, the evidence and arguments your attorney provides, and the discretion of the judge.

Contact Our Law Office for the Legal Representation You Need!

If you are getting a divorce and you have frozen embryos, you need an experienced legal advocate on your side. At Law Practice, Ltd., we frequently handle complex divorce issues and can provide the guidance and advice you need to secure the best possible results.

Call us today at (702) 899-2875 to schedule a consultation.

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