Who Gets The Embryos In A Divorce?

When a marriage ends, discussions lead toward property division, such as splitting up money, vehicles, homes, furniture, collections and other assets. However, in modern divorces, the definition of assets has changed somewhat. While traditional assets are still at stake, there are some others that are growing in popularity, such as embryos.

This may seem odd, but with in vitro fertilization (IVF) on the rise, many couples are having embryos created and stored for possible future use. So when the couple decides to divorce, this genetic material is at stake. So which party gets it?

Ideally, this would be something that couples would discuss before a split. A couple should have a legal contract in place that details the rights of each party should their relationship end. While nobody expects to get divorced, half of all couples do, so it should be something they keep in mind.

This issue was played out earlier this year, when “Modern Family” actress Sofía Vergara was sued by her former fiance, Nick Loeb. The two had created embryos when they were together and Loeb sued Vergara for custody of them. The court ruled in favor of Vergara and Loeb must have her consent before using them.

Currently, what happens to the embryos is determined on a case-by-case basis. Judges often rule in favor of the person who does not want the embryos used, which means the embryos could end up destroyed. In Arizona, though, custody of embryos is given to the person who wants them to “develop to birth.” In other cases, however, judges have ruled that it could be “exceedingly painful” for a child to be born against someone’s wishes. There have been instances of embryos being awarded to women who could otherwise not reproduce. In other cases, embryos have been donated to research or even other couples under court order or remained frozen indefinitely until a mutual agreement can be reached.

Since this topic is so new, there is no one-size-fits-all approach yet. Plus, the topic of abortion seems to crop up because if embryos are destroyed, is that still considered abortion?

The use of IVF has risen during the pandemic, which means lawyers are starting to ask clients about genetic material during divorce consultations so they can be prepared. If they do have embryos, it certainly makes things tougher. It’s hard for someone to consent to use of their genetic material during a divorce. It makes the process much more awkward.

Contact a Maryland Family Law Attorney Today

The definition of assets have changed in the past few years. Now, genetic material can be part of the property division process in a divorce.

If you are considering divorce, the Columbia divorce attorneys at The Law Offices of Todd K. Mohink, P.A. can help you with asset division. Whether you have embryos or other non-traditional assets at stake, our team can guide you through the process and help you get a favorable outcome. Schedule a consultation today by filling out the online form or calling (410) 774-5987. We have two offices to serve you.




Recent Posts



Anne Arundel County

Empire Towers
7310 Ritchie Highway, Suite 910
Glen Burnie, MD 21061

Phone: 410-766-0113

Fax: 410-766-0270

Howard County On the grounds of Columbia Mall

30 Corporate Center
10440 Little Patuxent Parkway,
Suite 900
Columbia, MD 21044

Phone: 410-964-0050

Baltimore County (Arbutus/Catonsville)

Phone: 410-719-7377

Fax: 410-766-0270