Divorce and Frozen Embryos in Maryland
When a relationship dissolves, disputes may arise over cryopreserved embryos that the couple preserved during the relationship. In early 2021, a California judge ended a six-year-long legal battle between actress Sofia Vergara (of Modern Family fame) and her former fiancé over embryos the couple created during their relationship. The California judge in Vergara’s case ruled that she and her ex-fiancé must obtain each other’s written permission in order to use the embryos. In Maryland, the Court of Special Appeals recently issued an important decision on embryo disposition in Maryland. The appellate decision in Jocelyn P. v. Joshua P. addressed an issue of first impression in Maryland, and has now clarified the legal landscape for embryos disposition at separation or divorce. Notably, ART is common in Maryland, which ranks among the top quarter of states with the highest rates of ART usage.
In Jocelyn P., the lower court aligned with the California judge’s approach in Vergara’s case, which was ultimately overturned by the Maryland appellate court. The lower court’s approach is commonly referred to as “contemporaneous mutual consent,” and requires both parties to agree before anything can be done with frozen embryos. The Maryland appellate court instead outlined a “blended contractual/balancing-of-interests approach,” finding that, “courts should first look to the preference of the parties in any prior agreement expressing their intent regarding pre-embryos” and, in the absence of such an agreement, “courts should seek to balance the competing interests.”
The most impactful language came from the appellate court’s discussion about ART contracts. The court condemned “boilerplate language” and held that “as matter of first impression, progenitors, not fertility centers, must expressly and affirmatively designate their own intent with respect to disposition of pre-embryos.” The court further held that “boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as express agreement regarding what to do with pre-embryos.” The appellate court is directing parties engaged in ART to create clear contracts stating their plans for preserved embryos in the case of divorce or separation. Anything less, such as personal and inarticulate contracts, will no longer suffice to control the disposition of cryopreserved embryos.
Regardless of the lower court’s outcome for Jocelyn and Joshua when addressing this new case law on remand, the appellate court opinion exemplifies the importance of creating a clear contract addressing ART, which frequently arises in the family law context. At Markham Law Firm we continue to stay knowledgeable about recent family law decisions from our courts of appeal. Do not hesitate to reach out today at 240-396-4373.