TOWSON, Md. — The journey to becoming a parent can take many forms. Thanks to advances in technology, freezing pre-embryos outside of a mother's womb is becoming more popular. But what happens to that frozen pre-embryo when the couple decides to divorce? It's a complicated and moral dilemma that now has some legal guidelines thanks to one precedent-setting divorce case in Maryland.
Six-year-old Finley loves April Fools. In fact, his mom says he pulls pranks about every day.
“He is the absolute joy of my life,” Jocelyn Pope said about her son. “He is so funny and jokes all the time.”
Finley is an only child. Soon after his parents, Jocelyn and Joshua Pope got married in 2010, they decided to start a family. After struggling with fertility issues, the couple turned to inter-uterine inception, or IUI, and then in vitro fertilization, or IVF.
“I tell him all the time, I say, ‘Mommy was praying for a baby and God said wait,’ she recalled. “I waited forever.”
After five years and seven rounds of treatments, the Popes had three viable pre-embryos. Those fertilized eggs that met the criteria to be successful, were frozen.
“We had said that during the process that we were going to use every single one,” said Jocelyn Pope. “We said that if we're going to create life, we're responsible with that life.”
The first implant ended in a miscarriage, but the second produced their baby boy. Finley was born in 2016. Just shy of a year later his parents split up.
“So, Maryland has a marital property act that the courts use to divide up personal property, the knives, forks and spoons, the bank accounts, the cars, and even the dogs and cats, now,” said Attorney Debra Cruz. “But, there was nothing addressing something that has the propensity for life.”
Until now.
Attorneys Debra Cruz and Shannon Boisseau are representing Jocelyn in her divorce proceedings that have made state history. Jocelyn, now 42, wants to implant that final pre-embryo. Attorneys for her estranged husband Joshua declined to be interviewed by WUSA9 for this story, but according to court documents he testified that he wanted the pre-embryo destroyed because of her health, the potential fetus's health, financial responsibility, and his lack of parental rights.
The case first filed in 2019, was sent to the Maryland Court of Special Appeals which created the first-ever framework for judges. The six guidelines include balancing the interests of each party and whether they had a prior agreement. According to Attorney Cruz, the court even recognizes a verbal agreement.
But George Washington University Law Professor Sonia Suter said that is not always the case.
“Some jurisdictions think well, you know, if the contract was that the embryos be brought to term, and somebody has changed their mind, can we really force a person to become a genetic parent against their will?” she proposed.
Professor Suter focuses on the intersections of law, medicine, ethics, and emerging reproductive technologies.
“As long as embryos can stay frozen for a while, and marriages can split up, you can expect to see these kinds of disputes,” said the professor.
Nineteen states have adopted guidelines around the fate of frozen pre-embryos in divorces. Tennessee was the first in 1992. Suter said these difficult cases are more complicated by the recent Supreme Court Ruling overturning Roe V. Wade.
“They (the justices) were thinking about abortion. I don't know that they were thinking about these scenarios,” explained Suter. "So, you could well imagine a state, I don't think Maryland as a state is likely to do this, but a state coming in and saying, ‘life matters above all else and so we don't want to destroy embryos. We would rather allow their potential life by donating them to couples who want to become pregnant.”
“Because of my infertility journey it's out of my control which is heartbreaking,” said Jocelyn Pope. “This is bigger than me now, it’s babies across the world.”
In the meantime, the couple's five-day-old pre-embryo remains frozen, and the divorce case continues where a judge will decide between Joshua's desire and Jocelyn's dream.
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