Who Gets the Embryos?

We live in an amazing time, when couples of all shapes and sorts can come together to form a family. These bonds can be beautiful, diverse and complex. Take for example the issue of frozen embryos, a technology which has opened the gates to parenthood but also resulted in thorny ethical and legal issues.

We can imagine how some of these issues arise. A women with cancer who freezes her fertilized eggs for a chance at biological children after treatment only to go through a divorce: is she now unable to have biological children or would the father be forced to become a parent against his will? A same-sex couple who use biological matter from one parent: do they each have equal rights to the embryo? Does biology prevail if a divorce is to occur? Then there is the question of the embryo’s “rights”, is it is a person? Property? Should they be donated to a third party, or to science, if no one can agree?


These topics can be heart wrenching, so it may not come as a surprise that states often take drastically different approaches. Here in Washington we use a contract approach, viewing embryos more like property. For the couple, this means that when they go into the fertility clinic they sign an agreement. This agreement prevails even if they later change their mind.

Not all states hold this view. Some states “side with the parent” believing that no person should be made a parent against their will. On the flip side, some states believe the embryo is accorded its own right to life as if it was already biologically alive, based on its potential for life.


Custody issues in divorce are difficult for all families, whether or not the children have been born. Our experienced team can guide you in all areas of divorce and custody. Please contact Elise Buie Family Law Group, PLLC for a free consultation. 

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