Paternal rights have become increasingly important in divorce and custody cases, as fathers want a role of involvement within their child’s life. Father’s rights include parenting time with his children, the right to consultation before adoption, and the right to time off from work to raise the child. 


Paternity Recognized in One State Recognized in Virginia

Virginia is one of many states that has adopted the Uniform Child Custody Jurisdiction and Enforcement Act. This allows for paternity recognized in one state to be recognized in Virginia as well. This act was passed and adopted by Virginia in an effort to deter interstate parental kidnapping and promote both uniform jurisdiction and enforcement of custody and visitation orders across state lines. 


Establishing Paternity in Virginia: Virginia Code § 20-49.1

Virginia Code § 20-49.1 lays out the guidelines used in establishing paternity in Virginia. The parent-child relationship between a child and a man can be established by:

Scientifically reliable genetic tests (i.e. blood or DNA tests),
Voluntary written statement acknowledging paternity, or
As otherwise provided for within the code.


Paternity in Virginia: Virginia Code § 20-49.4

Virginia Code § 20-49.4 provides a list of methods and types of evidence that can be used in establishing paternity. The standard of proof in any action relating to establishing parentage is based on a clear and convincing evidence standard. These methods include:

  • Evidence of open cohabitation or sexual intercourse between mother and the alleged parent,
  • Expert tests performed by medical or anthropological experts, 
  • Scientifically reliable genetic tests,
  • Evidence of alleged father consenting to the use of his surname by the child, or
  • Evidence of the alleged father claiming the child as his on any tax return or other government document. 

This is not an exhaustive list. 

Although on its face, establishing paternity based on the factors laid out in the Virginia Code seem straightforward, it gets complicated in situations involving artificial insemination, an increasingly popular practice available to women seeking to become pregnant as a result of technological advancements. 


Reproductive Technology Creates More than Just Children

Married couples often do not think about custody issues in the event of divorce. Many couples with children get caught up in the moment and fail to plan what to do in the event of a divorce. With today’s advances in reproductive technology, new legal issues are arising in custody disputes that involve children that have not yet been born. 

Recent innovations in reproductive technology allow individuals, who at one time were unable, to become pregnant. The egg, sperm, and womb needed to make a baby can be provided by three separate people or after a person’s death. However, new legal and ethical issues have arisen with the new technology that extend beyond the standard of which parent is more “fit” to act as custodian of the child. Judges are now left with the question of deciding who has custody over a frozen egg post-divorce.

Take for example a married woman diagnosed with a form of cancer that would eliminate the possibility of her getting pregnant after her treatments. What if she chose to have her eggs inseminated by her husband’s sperm before her cancer treatments and then frozen for the couple’s use at a later time? What if the couple gets divorced before they can use these eggs? Who gets to keep them or should they just be destroyed? Should the wife be allowed to birth her ex-husband’s children? If not, the woman would not be able to have any more children since her cancer treatments left her sterile. These issues grant the court both a moral and ethical dilemma in deciding cases.

Davis v. Davis was the first case that addressed this topic. During the marriage, the couple attempted to conceive through in-vitro fertilization. The couple later got divorced, thus giving rise to this dispute. The dispute arose over what to do with the eggs. The wife initially wanted the frozen pre-embryos implanted in her but then decided she wanted them to be donated to childless couples. The husband wanted the eggs to be discarded. The court ruled in favor of the father, allowing for the eggs to be discarded and destroyed, citing the rationale that his interest in not becoming a parent outweighed the interest in the wife who wished to donate the embryos. 

The court held in Litowitz v. Litowitz that embryos could not be implanted in the wife post-divorce without the husband’s consent. In this case, a couple was unable to have a child since the wife was unable to produce eggs or give birth. They got eggs from a third party egg donor and fertilized them with the husband’s sperm. Through this process, they had one child, but later got a divorce. After the divorce, the mother sought to have the eggs implanted inside her in order to have another child.

Looking at case law from other states, there are three different approaches the Courts take in determining paternity rights involving frozen embryos. 


First Approach: the “Contractual Approach.” 

Under this theory, courts will defer to a contract executed by the parties regarding the disposition of frozen embryos, so long as the contract is valid and does not violate public policy. This was seen in a New York case, Kass v. Kass, which held that a signed consent form, signed by both husband and wife, governed the frozen embryos. The consent form articulated where the parties agreed the eggs would be distributed to in the event of death or divorce. The court held that the agreement was enforceable and did not violate public policy.

The Texas Court held in a 2006 case, Roman v. Roman, that a signed consent form where the parties (husband and wife) agreed that in the event of death or divorce, any cryopreserved pre-embryos would be destroyed. The Court held that such an agreement was enforceable and did not violate public policy.

Similarly, the Oregon Court of Appeals held that a signed consent form stating that the wife would get to choose what was done with cryopreserved pre-embryos in the event of death or divorce, was valid. 


Second Approach: the “Contemporaneous Mutual Assent Approach”

Under the second approach, known as the “contemporaneous mutual assent approach,” contracts entered into at the time of in-vitro fertilization would not be treated as binding contracts if either party has a change of heart regarding the use or disposition of the fertilized embryos. In application, this means that if either party decided that he or she no longer wished to be a parent, a court would not compel biological parenthood.


Third Approach: the “Balancing Interests Approach”

The third approach, known as the “balancing interests approach,” is by far the most complex and the most difficult to apply. This test is most often applied when the parties have not entered into a contract with the in-vitro fertilization clinic. When applying this test, a court will weigh each party’s interest in the disposition of the embryos and will ultimately decide whose interest should control the disposition.


Case of First Impression on Frozen Embryos in Virginia

On September 7, 2017, the 10th Circuit of Virginia was faced with a case of first impression involving the distribution of frozen embryos upon divorce. A couple, both of whom are physicians, sought divorce. In settling, the parties could not come to an agreement as to who should have control over frozen embryos. 

In February of 2015, the wife was diagnosed with breast cancer. At that time, she left her medical practice and sought treatment of her own illness. The couple was aware that a potential side effect of chemotherapy treatment is infertility and entered into discussions regarding undergoing the process of in-vitro fertilization in order to preserve the wife’s eggs before becoming infertile. 


Consent Form for IVF Services

The couple sought services at Virginia IVF and Andrology Center twice. Each time, the couple was presented with a consent agreement that stipulated what should be done with the embryos in the event of death of either party or divorce. Prior to their meeting at Virginia IVF and the signing of the consent agreements, the parties had not discussed amongst themselves or with the guidance of legal counsel in determining what should be done with the embryos in the event of death or divorce. 


Couple Indicated on Signed Consent Form That Embryos Would Be Destroyed in Event of Divorce 

Initially, the couple chose that the wife would decide the disposition of the embryos should the couple divorce. After further discussion, husband decided he would not undergo the procedure unless the couple indicated the embryos would be destroyed if they divorced. 


Court Used the “Balancing Interests Approach” 

The Court used the “Balancing Interests Approach,” favoring this approach over the “Contractual Approach” because the Consent Agreement contract was neither a premarital agreement or a marital agreement, as contemplated by the Virginia Code. 

In using the “Balancing Interests Approach,” the Court looked at factors laid out in Davis v. Davis. Specifically, the Court will consider “the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by differing resolutions.” 

Here, the wife testified that she wanted to have more children. Her chemotherapy treatments left her infertile, so her only hope at doing this was through the frozen embryos. She testified that she and her husband were trying to conceive another child in the months leading up to her diagnosis with breast cancer. Without the embryos, the wife will never be able to have more children. She will also never be able to give her daughter siblings. 

The husband cited two primary concerns as reasons for not wanting to preserve the embryos. He was concerned with the well-being of a child born from one of the embryos and the overall impact it would have on their daughter. He also expressed concern for the risk to the mother and what would happen to their daughter if something were to happen to the mother during the IVF. He also did not want to engage in another custody dispute. 


Court Decided in Favor of Wife

The Court decided in favor of the wife, awarding her the embryos. The Court considered the factors laid forth in § 20-107.3 of the Code of Virginia, considering the ages, physical and mental conditions of the parties, how and when specific items of such marital property were acquired, and other factors deemed necessary and appropriate. 

The Court also looks to the fact that the couple engaged in the IVF procedure as evidence of intent to reproduce on its face. The procedure is both expensive and invasive into their personal privacy. However, the couple did this procedure knowing their marriage hadn’t been perfect for years.

As reproductive technology advances and becomes more common for couples facing challenges with childbirth, the court will continue to have to rule on cases involving this issue. 

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg