Assisted Reproductive Technology: Who Gets Custody of Embryos?

September 6, 2018 | By Julie R. Colton

Dealing with infertility and assisted reproductive technology is overwhelming.  Learning the acronyms (IUI, ART, IVF, ICSI) alone can seem daunting.

Then there is the anxiety and fear that come along with the regular testing and attempted cycles.  There is the emotion that accompanies the desire for a child.  The women start to feel like they are a living science experiment and the men can feel powerless.  Yet as intended parents trudge through the medical and laboratory bureaucracy, few think about the legal implications of the medical process. 

In Pennsylvania, frozen embryos have been divided as a marital asset.  The court appears to prefer a contract analysis.  But, if there is not a contract the court applies a totality of the circumstances test.  This means they look at all aspects of the intended parents before determining who should be awarded the pre-embryos in the event of a dispute.  While the court would likely strongly consider awarding the pre-embryos to the intended parent who is not interested in pursuing parenthood, there is a  case in Pennsylvania where the pre-embryos were awarded to the wife who wanted to use them.  The wife had been rendered infertile after cancer treatments.  The spouses had pursued IVF to preserve her fertility.  The court determined that wife’s interest in a biological child outweighed the husband’s interest in not being a parent.

In another case that is pending before the Pennsylvania Supreme Court, there is a battle over whether two women who were in a long term relationship are both parents to the child conceived through assisted reproductive technology during the marriage.  The birth mother is legally a mother.  The question is whether the woman who helped raise the children in a committed relationship, but has no biological connection to the child, is a legal mother after the relationship ends.  If both women are mother’s the non-biological mother will face a second challenge.  In Pennsylvania the custody law gives preference to a biological or adoptive parent over a third party.  If the non-biological mother has not adopted the child, then she ends up facing an uphill battle to obtain equal custody rights.

Most fertility clinics ask intended parents to fill out a number of forms.  You might have to determine what happens to genetic material in the event either intended parent dies.  You might have to designate what happens to genetic material in the event the parents separate or divorce.  These documents are helpful, but a legal consult would make sure that the intent of both parents is protected as much as possible.  A thorough agreement should be drafted that outlines what is to happen in the event of divorce, separation, and death.

If pre-embryos can be used posthumously, you may need to revise estate planning documents. One Texas case recommended that frozen embryos go to a two year old whose parents died in a car crash.  The embryos were to be maintained in storage until the child was 18 years old and could decide what he wanted to do with them.  Additionally, posthumously conceived children are not entitled to social security survivor benefits from the parent who died prior to their birth.).

If embryos can be used after divorce or separation, the intended parents should contemplate potential support scenarios.  When the Pennsylvania Superior Court determined that a wife could use the pre-embryos after divorce, the court refused to rule on whether or not the husband would be the legal father.  The court refused to rule on whether or not the husband would have a support obligation.  The court has left us with more questions than answers when it comes to child support and assisted reproductive technology.

Contracts about pre-embryos can be drafted before, during, or after marriage.  Engaged couples who are considering a prenuptial agreement should discuss whether they want to include language about genetic material.

Assisted reproductive technology can be even more legally complicated when the procedures occur outside of a doctor’s office or laboratory.  Unintended parentage can occur.  Known donors can become parents or intended parents may not have legal rights.  A legal consult should occur to make sure all parties are properly protected.  A court in Kansas had to determine if a man who sold his sperm on Craigslist was a parent for child support purposes. It is best to make sure donors and intended parents have the legal relationship to the child that is intended.

As part of a legal consultation about the use of assisted reproductive technology, there should be a discussion about whether the agreements are enforceable.  Surrogacy agreements may or may not be enforceable depending on the jurisdiction.  There is a quartet of cases out of Pennsylvania and Ohio that arose from one surrogacy incident, because the gestational carrier pursued custody of the children after birth.  Pennsylvania courts eventually determined the gestational surrogate was not a parent and had no custody rights.  Pennsylvania also ruled the intended father who was ultimately determined to be the legal father of the children could not recoup the child support he was ordered to pay during the custody fight.  The Ohio Courts reviewed the enforceability of the surrogacy agreement for damages as well as to determine parentage of the egg donor.  The Ohio court opinion was very critical of the Pennsylvania trial court opinion.

In another Pennsylvania case that made headlines, an intended mother tried to back out of a surrogacy agreement after the child was conceived.  Pennsylvania courts enforced the agreement and discussed the procedures available to obtain orders prior to birth that allow the intended parents to be listed on a birth certificate.

Assisted reproductive technology can be overwhelming.  Considering talking to a lawyer to handle the legal aspects, similar to how the doctor is trusted to handle the medical aspects.  A contract could bring more peace of mind to the tumultuous times.


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Julie Colton - Pittsburgh Family Law Mediation

Julie R. Colton


Pittsburgh Family Law Attorney   Julie focuses her practice on family law matters including divorce, child custody, support, asset division, prenuptial agreements, and international custody. Julie also has experience in family law...

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