Who Gets the Embryos in a Divorce
July 21, 2018, 7:09 p.m.
Arizona recently passed a new law that is not without controversy concerning frozen embryos and a divorce.
The Arizona law went into effect last month and it gives legal custody of the embryos to the parent that wishes to have a child after separation. The other parent has no legal obligation to the child.
While this law has created additional issues between pro-life and pro-choice advocacy groups, the question that remains unanswered is- how is financial support determined if the embryo goes to full birth?
In any case before a family court judge, whether a divorce or paternity case, child support is determined. If the biological father is unknown, paternity tests are done. I have had my share of cases where paternity tests where done on multiple potential fathers.
To be honest, and I swear on this, I represented one mother that in my office before her mother, had to tell me when she vacationed in Europe, she slept with seven different men in seven days and had no idea who the father was or how to find him. Even worse, her friend did the same and I know this because I also represented her a few years later.
If a mother requests any sort of government assistance and child support has not been determined, then a case will be filed with the Department of Revenue, Child Support Division.
For the most part, child support cannot be waived. A few times I’ve had it occur, but that has been when the Mother has earned a substantial amount of income in comparison to the Father, whose financial contribution per the child support guidelines would be minimal.
In my experience, when comparing the two incomes, the judges have agreed that the contribution would be so minimal, that child support could be waived. But, if there is no other parent to contribute to the expenses, support, and maintenance of the minor child, then how is the child assisted financially?
Is the mother/father independently wealthy and thus, this isn’t an issue? What if they are poor but wish to have the child anyway?
How these questions are answered remains to be seen and definitely will result in further litigation. This, without taking into consideration the potential emotional impact. What if the mother has a child through in-vitro fertilization and the parties have been separated for years?
For example, what if embryos were frozen when the parents were in the mid-twenties for whatever reason, and then they get divorced? What happens if the father finds out ten years later that his ex-spouse was able to give a full birth to an embryo and now that father has a son (although not legally his son).
Alexander Hernandez, Esq.
Twitter Handle- @mcatty_alex.