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Should Fertilized Embryos Or Fertility Treatments Be Considered Part Of The Marital Lifestyle And Be

With the advance of modern technology, and in particular with the advances of in vitro fertilization, leads to the question of whether a soon-to-be former husband should be responsible for a wife’s future egg-freezing procedures, medication costs or embryo/egg storage costs. The reality of the situation is that couples often delay having children in order to establish their careers. What happens if a married couple always planned to have children or had made several failed attempts at in vitro fertilization before the marriage began to unravel?

Generally, the procedure of extracting and freezing eggs costs between $5,000 and $13,000. At the end of a divorce, the purpose is to equitably divide marital assets. The argument can be made that fertility treatments should be considered part of the marital lifestyle. Likewise, the argument can be made that a wife’s missed chance to have a baby during the marriage is akin to a form of sacrifice for which she should receive compensation. This argument is similar to one spouse’s expected compensation for contribution toward the other spouse’s higher education costs (i.e. law school, medical school, graduate school).

In some cases, courts have acknowledged the realities of a woman’s biological clock and awarded her custody of fertilized embryos. For instance, an Illinois appellate court held that a woman could keep custody of the embryos she and her ex-boyfriend created before she became infertile due to cancer treatments.

In other words, when it comes to fertilized embryos and/or the cost of in vitro fertilization treatments in the context of a couple’s marriage and impending divorce, nothing should be off the settlement table. And, a woman may very well be able to receive the embryos and/or fertilization treatments, medical costs, etc., in a divorce.

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