Can Unfertilized Egg Freezing be considered Alimony?

On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, September 9, 2013.

Many people divorce without ever having had children. Not because they did not want children, but because they couldn’t. While a man may be able to walk away from a marriage and start a new family, for many women it may be biologically too late.

What can be done? One solution appears to be assisted reproductive technology in an interesting case from New Jersey.

A 38-year-old woman in New Jersey is asking for her soon to be ex-husband to pay to have her eggs frozen as part of her divorce settlement, in case she decides to have children in the future. The procedure could cost up to $20,000.

Freezing embryos, women’s eggs fertilized with sperm, has been done in fertility clinics for decades, but now science has improved upon freezing unfertilized eggs to use in the future.

In recent years, scientists have figured out how to freeze and thaw unfertilized eggs from women, allowing them to freeze their eggs now, and thaw them in the future, when they are ready to have children.

You might not know when your baby-making days are up, but you can calculate what it’s worth to preserve them. Figures vary by woman and by clinic, but the formula involves the cost of extraction surgery and freezing ($5,000 to $13,000, generally speaking), the number of eggs you can expect to get, the number you’re advised to stash away, your clinic’s success rate and the number of children you want.

All of a sudden, fertility has been assigned a value. If the point of a divorce settlement is to take inventory of a couple’s joint life and divide the assets, then that commodity belongs on the negotiating table – alongside vacation time-shares and projected earnings from his and her M.B.A.’s.

In the New Jersey case, a married couple tried several times at in vitro fertilization during their marriage without success. As part of the divorce case, the wife is now arguing that since in vitro fertility treatments were part of the marriage, they should be considered part of their marital lifestyle, which should be maintained as much as possible after the divorce.

The Wife’s attorney is essentially arguing that the Husband should pay for the freezing of her eggs for a future in vitro treatment. In a sense, she can walk away from the marriage and start a family just as her future ex husband can. You can read more about this unique situation in the New York Times.