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San Antonio, TX Family Law and Military Divorce Blog

Wednesday, August 20, 2014

Assisted Reproduction - Part 2: Divorce

This is the second in a three-part series that describes legal issues in assisted reproduction.  In this blog, we'll explore the issue of "divorce."

First, if the parties have a contractual agreement that states in the event of later divorce what will happen to the eggs, sperm or embryos stored for purposes of assisted reproduction, then a Texas court will enforce that agreement.  If no agreement exists, then the eggs, sperm or embryos are community property that a Texas court can award to one spouse or divide between the spouses in divorce.  So, if no agreement exists and the court awards your ex-spouse the eggs, sperm or embryos, do you have to worry about your ex-spouse making you a "legal parent" (to include an obligation for 18 years of child support) against your will?  No.

The law states that if divorce occurs prior to placement of the eggs, sperm or embryos, then the former spouse is not the parent of the child unless two conditions are met.  First, the former spouse must have consented in writing to becoming the father or mother based on assisted reproduction that might occur after divorce.  Second, record of that consent must have been kept by the licensed physician who provided the assisted reproduction services.  The story doesn't end there.  Even if the former spouse had given consent in a written record, his or her consent can be withdrawn any time prior to placement of the eggs, sperm or embryos.

In sum, the key take-away is that neither your ex-spouse nor a Texas court can force you into becoming a "legal parent" of a child born of assisted reproduction that you never agreed to have.

In part three of this series, we'll look what happens if a spouse dies before placement of the eggs, sperm or embryos in storage.  Stay tuned.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


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