Divorce and Frozen Embryos: Who Has Legal Rights in Maryland?
When a couple divorces, dividing marital property is rarely simple, but frozen embryos present one of the most legally complex and emotionally charged disputes that can arise in a Maryland divorce. Unlike a house or a bank account, frozen embryos cannot be treated as ordinary property. They sit at the intersection of contract law, constitutional rights, and deeply personal decisions about whether to have children. Maryland courts have developed a specific legal framework for resolving these disputes, but these can be very difficult legal cases.
How Does Maryland Law Treat Frozen Embryos in a Divorce?
Maryland does not classify frozen embryos as either persons or property in the traditional legal sense. Instead, the courts recognize that embryos occupy a unique status. This status is one that carries “special respect” given their potential for human life and the fundamental rights of both parties to decide whether to become a parent. The right to have a biological child and the right to avoid unwanted parenthood are treated as equally significant and must be carefully weighed against one another.
The leading Maryland case on this issue is Jocelyn P. v. Joshua P., decided by the Maryland Court of Special Appeals in 2021. That case involved a divorcing couple who disagreed about what to do with a remaining frozen pre-embryo. The wife wanted to use it for implantation; the husband wanted it destroyed or donated. The court established a blended legal framework for Maryland judges to follow. It is one that first looks to any agreement between the parties and, in the absence of a clear agreement, applies a structured balancing test.
What Role Do Prior Agreements Play?
If a couple signed a written agreement with their fertility clinic addressing what would happen to frozen embryos in the event of divorce, that agreement carries significant legal weight in Maryland. Courts will examine the terms carefully and, where they are specific and express, enforce them. Even oral agreements made between spouses before or during in vitro fertilization (IVF) treatment may be considered if the evidence supports that a genuine understanding existed, even though oral accords are not usually favored.
However, Maryland courts have recognized that boilerplate consent forms entered years before a divorce may not adequately capture the parties’ intentions for all possible future circumstances. A form contract that does not expressly address what happens upon divorce may not be sufficient to resolve the dispute on its own.
What Happens When There Is No Clear Agreement?
When no express agreement exists or when the agreement does not clearly cover the situation, Maryland courts apply a balancing test drawn from the Jocelyn P. framework. Judges weigh several factors, including the intended use of the embryos by the party seeking to preserve them, each party’s ability to have children through other means, the original reasons the couple pursued IVF, and the burden that unwanted genetic parenthood would place on the opposing party. Courts may also consider whether either party has acted in bad faith, for example, by using the embryos as leverage in the divorce.
Notably, Maryland courts are not permitted to base a decision on financial differences between the parties, the number of children either spouse already has, or the availability of alternatives such as adoption. The analysis must focus on the parties’ reproductive rights and the specific facts of their situation.
Why Does This Matter for Maryland Couples Undergoing IVF?
The Jocelyn P. decision, along with ongoing legislative and judicial developments across the country, underscores how important it is for couples undergoing in vitro fertilization to have a clearly written embryo disposition agreement in place before beginning treatment. A well-drafted agreement can prevent years of litigation and protect both parties’ interests. Under Maryland family law, agreements addressing personal rights in the context of a marriage are generally enforceable, but only if they are clear, specific, and entered into voluntarily.
Annapolis Divorce Lawyers at Oliveri & Larsen Help Spouses Navigate a Complex Divorce
The Annapolis divorce lawyers at Oliveri & Larsen represent clients throughout the greater Annapolis area in high-stakes family law matters, including disputes involving frozen embryos, assisted reproduction, and the full range of complex divorce issues. To learn more, call us at 410-295-3000 or contact us online to schedule a consultation. We have offices in Annapolis, Maryland, and serve clients in the surrounding areas.
