Frozen in custody battles: Thawing out a uniform solution for the disposition of frozen embryos at the time of divorce

• Published date: 01 July 2022
• Author: Jaime DeFilippis
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/fcre.12659

STUDENT NOTES

Frozen in custody battles: Thawing out a uniform

solution for the disposition of frozen embryos at

the time of divorce

Jaime DeFilippis

1,2

1

Family Court Review, New York, USA

2

Maurice A. Deane School of Law Hofstra

University, Hempstead, NY, USA

Correspondence

Jaime Claire DeFilippis, 329 Moriches Road

Saint James, New York 11780, USA.

Email: jaime.defilippis@gmail.com

Abstract

Currently, the United States lacks uniform legislation

addressing the disposition of frozen embryos in the event of a

divorce, leading state courts to grapple with the issue of who

should receive custody of the embryos; even when couples

have stated advanced directives. Many state courts have

strictly enforced these contracts, without considering the indi-

vidual's significant change of circumstances. In neglecting these

changes, courts often prevent an individual from creating a

family. This Note proposes that courts consider the individual's

significant change of circumstances regarding infertility so

infertile individuals will have the ability to start a family.

KEYWORDS

assisted reproductive technology, cryopreservation, disposition

contract, divorce, frozen embryo, in vitro fertilization, infertility

Key points for the family court community

•Approximately 13% percent of American women aged

15–49 suffer from some sort of infertility problem.

•Of the approximately 61 million women ages 15–44

years old in 2011–2015, more than 7 million or 12%, had

received infertility treatments.

•The various reasons couples use assisted reproductive

technology (“ART”) may be due to endometriosis,

blocked or damaged fallopian tubes, ovulatory dysfunc-

tion, structural or functional disorder of the uterus,

diminished ovarian reserve, egg or embryo banking,

DOI: 10.1111/fcre.12659

© 2022 Association of Family and Conciliation Courts.

560 Family Court Rev. 2022;60:560–574.

wileyonlinelibrary.com/journal/fcre