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Oct 4, 2013

Are Unborn Children Treated as Property, or People, in Divorce?

Oct 4, 2013 - Family Law by |

Going through a divorce will often present a variety of challenges, including the division of property, child custody, and child support.  However, all of that may now intersect in a strange new way — what if unborn children are treated as property in a divorce?

It’s a situation that is beginning to unfold in courtrooms across the country, including right here in Maryland. But even the most experienced of divorce attorneys in Maryland are unlikely to have direct experience in these matters until now.

The specific issue at hand involves frozen embryos. What happens to frozen embryos which had been created by a couple during their marriage? Who do they belong to? What happens to them in the event of a divorce? Are they future children, or a possession worth a certain amount of monetary investment?

If frozen embryos are “property”, would child support still be necessary? If on the other hand, frozen embryos are treated as people, and the parties disagree on whether or not they should be utilized after a divorce, how is that matter settled? Now abortion laws come into play as well, further muddying the waters.

The way these questions are answered bring major consequences for divorce proceedings in the future. Previously, frozen embryos would be treated as property, and typical laws regarding the division of property applied. However, shifts are now being made in the opposite direction.

  • In the above-referenced case in Maryland, a woman was awarded custody of nine frozen embryos which had been created during her marriage.
  • In another case with similar issues, a Kansas sperm donor was sued by the state for child support, even though his parental rights were waived.
  • In New Jersey, a woman is seeking to have $20,000 paid by her ex-husband to fund the cost of freezing her eggs, because she planned to start a family and her window is closing.

This may seem like an unlikely scenario to find yourself in. But as with all family law matters and divorce cases, it’s always best to be as prepared as possible beforehand.

Moving ahead, prenuptial agreements may address these types of family planning issues specifically, beyond financial matters and other concerns.

If you’re uncertain about your rights, or you are facing a potential separation or divorce, then contact the Law Offices of Brandon Bernstein at 240.395.1418 to schedule a free consultation and we’ll discuss your options as your new divorce lawyers in Maryland.


The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Read our full disclosure here.