Ohio Supreme Court to rule on divorced couple’s battle over IVF-created embryos

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COLUMBUS, Ohio ( WCMH ) — The Ohio Supreme Court will decide whether a Summit County man can prevent his ex-wife from becoming pregnant using embryos the couple created through in vitro fertilization before their divorce.

Ohio’s top court is taking up the case after the 9th District Court of Appeals sided with the ex-wife, named “E.B.” in the filing, and ruled she should have the opportunity to use the frozen embryos to attempt to become pregnant. E.B.’s wishes outweigh the ex-husband’s request to donate the embryos to an unknown couple and “avoid the consequences of creating potential biological children,” the court said.

“It appears [the husband’s] wishes are largely rooted in wanting to both be disentangled from wife and having no knowledge of what ultimately becomes of the frozen embryos, and therefore no responsibility or guilt associated with that decision,” the appeals court’s decision states.

However, the husband, named “R.N.” in the filing, argued in his appeal to the Ohio Supreme Court that the case is about whether “one person can obtain a court order that forces another person to become a parent.” R.N.’s attorneys wrote that the 9th District’s ruling violates the ex-husband’s “right to procreational autonomy.”

“If the 9th District’s view becomes Ohio’s new standard, forced parentage would become a genuine danger for persons who have previously or are considering IVF treatment,” the appeal states. “The harm caused by this decision, that could dissuade people from utilizing IVF, is immeasurable.”

The Summit County couple married in 2016 and started IVF treatment in 2018 that eventually yielded 14 embryos, which were not implanted and instead frozen. In going through the process, the pair signed a contract that said, should they divorce, a court decree or settlement agreement will be presented to the IVF clinic “to achieve pregnancy in one of us or donation to another couple for that purpose.”

After the couple filed for divorce in 2019, a Summit County trial court determined the frozen embryos were “martial property” subject to distribution. The ex-wife appealed the decision to the 9th District when the trial court gave each of them seven embryos, but then also required that all 14 be given to the IVF clinic for donation for another couple to get pregnant.

E.B. argued that the embryos represent her last best chance to have her own children, given she underwent treatment for thyroid cancer in late 2019 that further delayed pregnancy. The 9th District said, regardless of if the embryos are given to the ex-wife or donated to another couple, R.N. cannot escape that “there will be children in the world who are biologically related” to him.

“His opportunity to avoid that possibility ended when he agreed, along with wife, to have the frozen embryos created,” the appeals court decision states. “While the unknown couple could live across the country, they also could live next door to [him].”

Still, the ex-husband noted in his filing that the 9th District “failed to balance the equities” because it ignored that there is not evidence that E.B. cannot have children by means other than the embryos. In ignoring “the need for mutual consent,” the appeals court “forced parentage on a person in a pre-pregnancy situation.”

“The decision destabilizes Ohio’s precedent regarding pre-implantation embryos and creates a route for one former spouse to force parentage upon the other former spouse,” R.N.’s attorneys wrote. “The decision abolishes the privacy rights of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

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