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Who Gets The Embryos In A Florida Divorce?


If you are thinking about divorce, you may have started wondering about how all of your assets will be distributed. Many people first think of assets like their car and home, however, with the recent and constantly evolving advances in reproductive technology, more and more couples are facing the question of who will get to keep the embryos. This is a particularly sensitive issue because an embryo is generally fertilized. This means that it is technically the property of both parties, containing an egg from a female as well as sperm from a male. This means that whoever gains ownership of the embryos could potentially prevent the other party from becoming a parent, or force them into parenthood against their will.

Determining Embryo-Ownership in a Divorce

The good news is that Florida actually has much clearer laws regarding the ownership and treatment of embryos than many other states. While some states treat embryos as an asset that must be allocated for equitable distribution during a divorce, and apply inconsistent standards to make this determination, Florida ensures that treatment of the embryos is determined from the start. In fact, Florida law requires that any couple entering into agreement with a fertility doctor sign an agreement which will result in the destruction of any genetic material (including pre-embryos) in the event of divorce, the death of either party, or any unforeseen circumstances. These agreements also typically include terms stating that the embryos are the joint-property of the couple and that any future use of the embryos requires the consent of both parties. If the parties have not entered such an agreement, forever, it may require litigation in order to determine how the embryos are treated. In this case, if the parties are divorcing, the embryos will be treated as joint property until a decision is made by the court, and in the event of death, the embryos will be given to the surviving party, absent any agreement to the contrary. This determination can be further complicated or simplified if the parties created a postnuptial agreement after signing the fertility clinic agreement that specifies how the embryos should be treated. In this case, if the latter agreement is valid, it will dictate how the embryos are treated. If there is no contract that governs the treatment of the embryos, the court may look at the totality of the circumstances in determining which party will take ownership of the embryos. In doing so, they may consider each party’s interest in the embryos, why they want ownership, and whether or not they want to use them.

Contact Bubley Law to Schedule a Consultation Today

If you are considering divorce, no matter how complex it may be, the experienced Tampa family attorneys at our office are ready to help make the process as smooth as possible and get you the best possible outcome. Contact Bubley & Bubley to schedule a consultation. The sooner you call, the sooner our attorneys can start working for you.



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