After years of painful setbacks, Jocelyn and Joshua successfully produced three viable pre-embryos (fertilized eggs not yet implanted in the womb) through in vitro fertilization (IVF).

After one miscarriage and one successful pregnancy, the couple decided to divorce. While in agreement on almost every divorce detail, the two could not agree on one huge question: What happens to the third pre-embryo?

Contemplating a potentially emotional, religious, moral, and/or ethical personal decision, a Maryland court recently tried to objectively answer the question to resolve Jocelyn and Joshua’s (real people) dispute.

The Case of Jocelyn P. vs. Joshua P.

Joshua sought to have the third and final pre-embryo destroyed, while Jocelyn wanted to attempt to have another child post-marriage. A lower court ruled in favor of Joshua deciding that the creation and use of the pre-embryo was contingent on the couple being married/together and raising the child together.

The Appellate Court of Maryland disagreed, and in late 2023, they awarded the pre-embryo to Jocelyn. Key to its decision was an oral agreement prior to the IVF where both parties agreed to give each pre-embryo an opportunity to be born “no matter what.” The joint IVF contract did not have an express provision concerning what would happen to the pre-embryo in the event of divorce, and at no point during the parties’ conversation did the subject of divorce arise. 

As is frequently the case with matters of first impression, the Court established new law and a mandate for how to resolve marital disputes concerning pre-embryos. However, the decision still does not address the question of support.

How Does This Decision Impact Child Support? 

Based on existing Maryland paternity and child support law, if Jocelyn successfully carries the implanted pre-embryo to term, Joshua would likely have the legal obligation to support his child and Jocelyn could not waive that on the child’s behalf. 

The Appellate Court alluded to some states having passed the Uniform Parentage Act, which conflicts with existing Maryland paternity law and would create an exception for pre-embryos implanted after the marriage is dissolved.

Nevertheless, that solution does not exist at this moment in Maryland. Moreover, parents cannot bargain away child support on behalf of a child in Maryland. So, for now, Joshua would be the putative father of the child and would be obligated to pay child support if Jocelyn sought it out.   

What’s Next

The joint IVF contract Joshua and Jocelyn signed contained a provision stating that, in the event of death or incompetence of the other, the surviving or competent spouse would have the sole right to use the embryo, which provided some coverage but still didn’t account for divorce.

The bottom line is married couples in Maryland looking to start IVF should make sure to have a detailed written agreement that outlines specifically what happens should the marriage end, and not leave it up to a court’s interpretation, regardless of what rules may come in the future.

Continue reading below for answers to common questions regarding pre-embryos and this case.

Q&A: What Every Spouse with Reproductive Matter in Storage Should Know and Understand

What is a pre-embryo?  It is a fertilized egg in storage, pre-implantation.

Does this opinion apply to other genetic material in storage?  Unclear, but there is potential for that if the material in storage is being held pursuant to a joint IVF contract. 

Is the genetic matter “property” or a “person”?  Neither.  Pre-embryos occupy an interim category (i.e. something more than just property, but not personhood) that entitles them to “special respect because of their potential for human life”. 

What standard must Maryland Courts apply when distributing pre-embryos?  The Appellate Court identified and analyzed the three leading approaches observed from other jurisdictions:  (1) the contractual approach; (2) the contemporaneous mutual consent approach; and (3) the balancing test.  The Appellate Court concluded that the combination of (1) and (3), but not (2), was the most consistent with Maryland law. 

What is the contractual approach?  Courts look first to any prior agreements between the parties regarding the disposition of the pre-embryos.  In this case, the agreement that controlled the outcome was an oral agreement between the parties – not the written and signed joint IVF contract. 

What is the contemporaneous mutual consent approach?  Courts look to the current preferences of the parties; if one party no longer consents to the maintenance or use of the pre-embryo, it will no longer be used or stored. 

What is the balancing of interests approach?  If the contractual approach does not resolve the issue, Maryland Courts should apply the following factors:

  • The intended use of the frozen pre-embryos by the party seeking to preserve them;
  • The reasonable ability of a party seeking implantation to have children through other means;
  • The parties’ original reasons for undergoing IVF, which may favor preservation over disposition;
  • The potential burden on the party seeking to avoid becoming a genetic parent; and
  • Either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and
  • Other considerations relevant to the parties’ unique situation.

For more information, contact Erik at 301-657-0725 or [email protected].