Unlike men, women’s window of fertility has always been somewhat of a mystery. As couples today are waiting longer to start a family, many women face the difficulty of trying to balance personal and career aspirations with deciding when is the right time to start a family. This can be particularly difficult when a marriage ends before a couple has had an opportunity to start a family. Women who may have planned to have children before their divorce, or tried to start a family but failed to get pregnant, are forced to face the reality of their declining fertility simultaneously with the reality of their divorce.
This struggle is particularly difficult for women dealing with divorce because although their exes may have many years left to start a family of their own, many newly divorced women worry that by the time they meet a new partner, it may be too late. One family law attorney in New Jersey had this very issue in mind for his 38-year-old client when he sought $20,000.00 from his client’s soon-to-be-former husband of eight years to pay for the costs associated with harvesting and storing his client’s eggs. The New Jersey woman explained to her attorney that when she and her husband first got married, the expectation was that they would start a family. Now, given her age, she worries that she might not have the opportunity to get pregnant much longer.
Figures vary on a case-by-case basis, but the cost of extraction surgery, freezing, and storage of eggs can range from $5,000.00 to $13,000.00. Although it might sound strange to assign such a concrete value to fertility, many argue that fertility should be valued much like the other assets in the marital estate. Under this view fertility would be viewed as a commodity and each spouse’s future opportunity to have children would be on negotiating table, alongside vacation time shares and projected earnings.
In the case of the New Jersey couple, their divorce was precipitated by several failed attempts at in vitro fertilization. Accordingly, the Wife’s attorney argued that fertility treatments were a part of the marital lifestyle, which should be maintained as much as possible post-divorce. At present, there is no state law that exists directly on this topic, but in rare circumstances, the courts have acknowledged the limits of a woman’s fertility. For example, an Illinois appellate court held earlier this year that a woman could keep custody of the embryos she and her ex-boyfriend made before she lost her fertility due to cancer treatments. Notwithstanding the Illinois court’s decision, it seems that the courts are a long way off from awarding money to parties to freeze future, unfertilized eggs. Luckily for the New Jersey woman, her attorney reports that the parties are close to an out-of-court settlement.