Embryo Disposition and Divorce in Florida

Across the nation there is various case law addressing disputes over embryos in the event of the parties divorce.

Some states strictly follow the terms of the parties agreements as to the disposition of the frozen genetic material. Many states have found that embryos should remain frozen until the parties reach a mutual consent as to the use to avoid forced procreation of a party who does not want any more children with their ex-spouse. Other courts have used a balancing approach and consider the interests of the parties involved in the use of the frozen embryos.

Case law from across the nation has also generally classified embryos subject to equitable distribution as a martial property in a divorce action.

Florida has very limited case law on this issue of the disposition of embryos in divorce proceedings.In the 2008 case, Kalliope VITAKIS v.David L. VALCHINE, the parties provided in their martial settlement agreement that the husband would receive the couple’s embryos to be disposed of. The court found the following:

Provision of marital settlement agreement requiring wife to turn over the couple's frozen embryos to husband for disposal was enforceable, despite wife's contention that husband had a change of heart and agreed to turn the embryos over to her; agreement provided that it could only be modified in writing, and wife acknowledged that there was no signed writing modifying the agreement.

Regarding frozen genetic material and disposition forms, Florida is one of the few states that has a law regarding frozen genetic material as it relates to death, divorce and unforeseen circumstances, the forms required to be entered into with the fertility clinics and what happens in default if the clinics forms are not completed.

‍Florida Statutes 742.17 provides as follows:742.17 Disposition of eggs, sperm, or preembryos; rights of inheritance.—A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.(1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.(2) Absent a written agreement, decision making authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.(3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.