Grand Rapids Embryo Litigation and Divorce Lawyers

Invitro Fertilization, or IVF, has been available for many years, but has recently gained a lot of national attention. The increasing use of IVF as a means to have a child has in turn, raised many legal issues and questions. The process involves using genetic material (sperm) from one individual to fertilize (eggs) from another individual. This, if successful, leads to embryos, which can be frozen and later implanted to allow a fetus to develop, and a child to be born. Each of these stages has its own legal status; here, the discussion is in regards to the embryo.

Embryo litigation is a complex and evolving area of law that intersects with family law, estate planning, and reproductive rights. Before starting the IVF process, potential parents should consider the laws surrounding embryos and the “what if?” scenarios so that there is a plan in place that can help to avoid costly, emotionally draining litigation.

Steps you should take to avoid litigation:

A. Before Marriage.

Couples planning to marry should disclose any existing embryos. This is especially important if the embryos are from a previous relationship. There needs to be an agreement on what happens to the stored embryo, or in some cases, the stored genetic material. This should also include an agreement on the costs of storing the embryo as well as an understanding of the person’s directive for the disposition of the embryos.

B. Before Creating Embryos.

When the time comes to move forward with the IVF process, a critical decision will be what happens to the embryos. There are several considerations: 1. What happens to any embryos not implanted? 2. What happens if you should divorce? 3. What if one of the parents dies? 4. What happens if one of the parents is incapacitated? 4. If you are not married to the genetic donor, Michigan Law has, so far, not ever denied a donor the right to pursue custody—a potential again, for litigation. 5. Meanwhile, most states, including Michigan, do not permit the disposal of genetic material through estate planning such as a Will, leaving embryos in limbo in the event of your untimely death.

The IVF clinic or storage facility will likely give you forms to fill out that address the disposition of embryos in these situations. You should consult with a knowledgeable attorney before completing or signing these forms. At VanDenHeuvel Law our attorneys have invested in knowing Michigan law as it relates to IVF.

C. Divorce: Addressing Stored Genetic Material.

If you should divorce, it is vital to include your stored genetic material as part of the proceedings. In the stress of the moment, it can be easy to overlook this material, but you will want to protect it and be able to have a say in what happens to it. The courts generally apply equitable factors, often favoring the party who does not wish to use the embryos, thereby avoiding forced procreation. In Michigan, there is a presumption of parentage in the creation of embryos under the Vital Records Act, which applies to IVF, assisted reproduction and surrogacy. This means that the person whose genetic material is used to create the embryo is presumed to have certain rights and will be allowed to petition the court for custody. The current case on this issue is Markiewicz v. Markiewicz, currently on Appeal to the Michigan Supreme Court. In that case both the Circuit Court and the Court of Appeals have ruled that the husband in the parties’ divorce should be awarded custody of the embryo, in large part because he does not want another child with his genetic material to be born to his ex-wife, who wishes to bear the child. One additional fact is that the courts generally will allow posthumous creation (implanting an embryo after a person’s death) if the embryo is used within 36 months of a parent’s death and within 45 months of the child’s birth.

D. Legal Precedents: The Markiewicz Case.

As mentioned above, the Markiewicz v. Markiewicz case, currently awaiting argument in the Michigan Supreme Court, outlines three approaches for embryo disposition. These include the mutual agreement of the parties, contractual designation, and a balancing approach.

If, in a divorce, the parties agree as to what happens to the embryos, the court will usually award per their agreement. If the parties do not agree, then the court will review the contract originally signed by the parties when initiating the IVF procedure. These can be the forms from the IVF clinic, or a contract sought from an attorney. If the contract is ambiguous, does not, in the court’s opinion, adequately address the parties’ scenario, or is disputed by the parties, the court may turn towards what is termed a balancing approach. This approach, which was used in Markiewicz, typically involves judicial determination of embryonic custody in the event of divorce.

Conclusion

If you are considering IVF, you may want to consult with a knowledgeable attorney before starting the procedure. IVF clinic forms are often broad and may lead to errors in embryo disposition. Creating a pre-conception agreement can provide clear directives for clinics and storage facilities in cases of divorce, death or incapacitation. You should obtain and review all relevant forms from your clinic, as multiple forms may exist for different IVF cycles.

If you should find yourself in a position where you need to litigate regarding the disposition of your embryo(s), you should consult an attorney who is well-informed on all aspects of IVF, and can help inform you about recent amendments to statutes regarding IVF, assisted reproduction, and surrogacy law (Link: https://clickforhoward.com/surrogacy/). At Van Den Heuvel Law Office we will work with you to help navigate your IVF journey. Contact one of our experienced attorneys today.