When parents fight over child custody issues, the child in question already exists, and is not merely a possibility in the future. However, with advances in technology, conception and reproduction are changing at a rapid pace. Storing eggs and/or embryos to reserve the ability to have a child in the future is a choice more women and couples are making. The use of surrogates to carry a child during gestation is also more commonplace as couples, historically limited by medical issues, initiate or expand their families. The power of modern medicine to allow individuals and couples the experience of parenthood is a wonderful thing, but when couples’ divorce or separate, figuring out who has legal rights over the reproductive specimens is not an easy issue to decide. Actress Sophia Vergara is in the midst of battling her ex-fiancé for custody of two frozen embryos. Vergara’s ex wants to implant the embryos in a surrogate in spite of an agreement that the consent of both parties was necessary for their use. Few states have considered custody rights over reproductive specimens, but given the ever-increasing use of this medical option, it is worth examining what the legal landscape of this issue currently is.

How States Classify Embryos

When states have addressed the status of embryos in divorce or custody disputes, the responses fall into four general categories. The first views embryos as persons and grants all the associated constitutional rights. Thus, it is possible to award custody of the embryos to one party in a divorce in states that recognize this stance.

The second approach sees embryos as property. A recent decision by an appeals court in Missouri determined that frozen embryos created from the reproductive specimens of a now-divorced couple is marital property, and should be held jointly by the parties to ensure that both individuals have a choice in creating a new child.

The third concept sees frozen embryos as having no rights by applying the tenet established in Roe v. Wade that rights are received following birth, and do not apply to the unborn. In these states, a court may not give custody to either party, and the fate of the embryo would be left to the facility that houses them.

Finally, some courts give embryos “special consideration” that amounts to a status somewhere between person and property because of its potential for human life. What this classification means in the practical context of divorce is not entirely clear, but it could indicate that one party should not have complete authority to discard the embryos; rather, both would need to cooperate in forming the final determination.

Surrogacy in Indiana

Surrogacy has a more established place in the law, and Indiana has a specific statute that controls the enforcement of surrogacy agreements. While the act of surrogacy itself is not illegal in this state, surrogacy agreements will not be enforced if a dispute arises, and they cannot form the basis for a custody determination for the child. Specifically, the statute prohibits the enforcement of any agreement that requires a pregnant party to waive parental rights to a child or terminate the party’s ability to care for, retain custody of, or control of the child.

Contact a Family Law Attorney

If you have questions or concerns about child custody issues, talking with an experienced family law attorney can inform you about your rights and what the law allows. Attorney Christopher L. Arrington represents clients in the Indianapolis area, and will work to get you the result that is best for your family. Contact him to schedule an appointment.