Who Gets Custody of the Frozen Embryos?


Beginning July 1, 2018 Arizona implemented a policy that custody of disputed embryos must be given to the party who intends to help them “develop to birth.”

Last month in June, here in New York, the NYC Appellate Division of the Supreme Court awarded the husband in a divorce proceeding the remaining frozen embryo in the case Finkelstein v. Finkelstein. This decision was made using different reasoning than Arizona’s new law.

In 1998 the New York Court of Appeals opined in Kass v. Kass that the general rules of contract interpretation shall be used to enforce in vitro fertilization (IVF) agreements.

In Finkelstein v. Finkelstein, the court, quoting the Court of Appeals, stated that they “are required to choose the construction that will carry out the plain purpose and object of the agreement.” Since the husband exercised the contract provision to withdraw his consent in carrying out the IVF (prior to implantation), the remaining embryo could not be used by either party.

Arizona has created a hard and fast rule. Conversely, in New York, it depends on what the prior agreement states. In this way there is some flexibility as to what the appropriate outcome will be.


**This post contains attorney advertising. Prior results do not guarantee a similar outcome. **

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