By: Hayden-Anne Breedlove

Married couples often do not think about custody issues in the event of divorce. Many couples with children get caught up in the moment and fail to plan what to do in the event of a divorce. With today’s advances in reproductive technology, new legal issues are arising in custody disputes that involve children that have not yet been born.

Recent innovations in reproductive technology allow individuals, who at one time were unable, to become pregnant. The egg, sperm, and womb needed to make a baby can be provided by three separate people or after a person’s death. However, new legal and ethical issues have arisen with the new technology that extend beyond the standard of which parent is more “fit” to act as custodian of the child. Judges are now left with the question of deciding who has custody over a frozen egg post-divorce.

Take for example a married woman diagnosed with a form of cancer that would eliminate the possibility of her getting pregnant after her treatments. What if she chose to have her eggs inseminated by her husband’s sperm before her cancer treatments and then frozen for the couple’s use at a later time? What if the couple gets divorced before they can use these eggs? Who gets to keep them or should they just be destroyed? Should the wife be allowed to birth her ex-husband’s children? If not, the woman would not be able to have any more children since her cancer treatments left her sterile. These issues grant the court both a moral and ethical dilemma in deciding cases.

Davis v. Davis was the first case that addressed this topic.[1] During the marriage, the couple attempted to conceive through in-vitro fertilization.[2] The couple later got divorced, thus giving rise to the dispute at bar.[3] The dispute arose over what to do with the eggs. The wife initially wanted the frozen pre-embryos implanted in her but then decided she wanted them to be donated to childless couples.[4] The husband wanted the eggs to be discarded.[5] The court ruled in favor of the father, allowing for the eggs to be discarded and destroyed, citing the rationale that his interest in not becoming a parent outweighed the interest in the wife who wished to donate the embryos.[6]

The court held in Litowitz v. Litowitz that embryos could not be implanted in the wife post-divorce without the husband’s consent.[7] In this case, a couple was unable to have a child since the wife was unable to produce eggs or give birth.[8] They got eggs from a third party egg donor and fertilized them with the husband’s sperm.[9] Through this process, they had one child, but later got a divorce.[10] After the divorce, the mother sought to have the eggs implanted inside her in order to have another child.[11]

The court seems to be ruling in favor of the party who chooses to have the eggs destroyed, perhaps as a consideration under the Fourth Amendment’s right to privacy.[12] The right to privacy of the parent choosing to not go forward with having a child is stronger than the right of the other parent to have a child.[13] As reproductive technology advances and becomes more common for couples facing challenges with childbirth, the court will continue to have to rule on cases involving this issue.

[1] Recent Case Law on Division of Frozen Embryos in Divorce Proceedings, (last visited Sept. 18, 2017).

[2] Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Litowitz v. Litowitz, 146 Wn.2d 514, 515 (S.C. Wash. 2002).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See supra note 2; See also supra note 7.

[13] See supra note 1.

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