Woman takes ex-husband to court in custody battle over embryos

SINGAPORE - It was a fight for custody rights with a twist. The divorced couple went to court not only to settle custody of their young daughter.

Also at stake was the fate of 12 frozen embryos, formed when the couple were married to each other.

In a landmark judgment of this unusual case, the Family Court here awarded the embryos fully to the wife.

When contacted, the Law Ministry and the Attorney-General's Chambers declined to comment.

But several lawyers told The New Paper that there are no governing laws on the issue of embryos in divorce cases in Singapore, and that this was the first time they had heard of such a case.

The wife, Ms Chen (not her real name), retrieved the embryos from the fertility clinic on Oct 18and, with a special Christian service, interred and placed them in a niche.

Ms Chen told TNP that she had resisted going for in-vitro fertilisation (IVF) "for a long time because of my religious beliefs".

"For years I had tried various hormonal therapies but nothing worked. IVF, for us, was the last resort. I was also under pressure to do so," she said.

The couple have a daughter, now 10, who was conceived naturally but their subsequent attempts to have another child were unsuccessful.

She blamed her long hours as a jet-setting management executive for this.

"My ex-husband thought I cared more about my career than having a baby and told his family and friends as much.

"Later, I realised that it was just to set up his excuse to leave me," she claimed.

IVF journey

IVF journey

Ms Chen started her journey towards IVF in 2007, after a long discussion with her then husband. The procedure took place over several months and included more than 250 hormonal injections - some of which she administered herself twice a day.

This was to prime her body to produce sufficient eggs to be harvested.

The first round failed because she did not produce enough eggs, but in May that year, she was informed that the second attempt had resulted in 19 embryos.

"Usually a woman is lucky if she got 10," Ms Chen said. "I had mixed feelings - delighted because the odds of success were suddenly higher, yet I wasn't prepared for this large number."

She said of one of her concerns: "If I get a child during the first implant, then what will happen to the rest?"

Ms Chen went through two rounds of insemination. The first failed to result in her getting pregnant.

During the second, Ms Chen found out that her husband was having an affair, the court was told. "When confronted, he said he wanted to call it quits. I was too shocked for words. He packed up and left the home," Ms Chen said.

"I had only just come back from the insemination process a few days ago and could have become pregnant, but he didn't seem to care. He just wanted to leave."

A few days later, Ms Chen started to bleed. She lost the babies from that round. She then filed for divorce in late 2007.

As part of the court proceedings, she not only sought custody of and child support for their daughter, but also for custody of the 12 embryos that were left.

Like their counterparts in the US, fertility clinics here require potential parents to sign a contract jointly agreeing to the embryos' ultimate fate.

But Ms Chen wanted to make sure she got sole custody of the embryos.

Peace of mind

Peace of mind

My ex-husband was so fixated on leaving that I wasn't even sure he was thinking straight. He wanted me to continue having the babies without him," she said.

She claimed he changed his mind weeks later and told her to give them away or destroy them.

"The way he was flip-flopping about something so important, I knew I could not depend on him.

"I don't want him to turn things around 20 years down the road, when he suddenly realises what he has done and put me on a guilt trip," she said.

Ms Chen said that gaining custody of the embryos was for her peace of mind.

The custody of the embryos was given to Ms Chen in an interim judgment in 2009.

The judgment was confirmed in January this year, when their long-drawn out court case over maintenance was settled.

Ms Chen and her husband were given joint custody of their daughter, with care and control to Ms Chen.

In the judgment grounds, the court also gave her the power to decide unilaterally the future of the embryos, without involving her ex-husband.

It also stated that should she decide to "dispose of the embryos and hold religious services with the disposal", he could not interfere.

Ms Chen said she had been grappling with what to do with the embryos.

"I was 37 when they were first conceived, so under the law, I could not even donate them.

"Once the clinic found out about the divorce, that also ruled out the possibility of me having and raising them myself," she said.

Adultery

Adultery

Ms Chen said that her ex-husband, upset with her for suing for divorce on grounds of adultery, "was not about to go down without a fight and so he did, for five years".

When the divorce was finally settled in January, she said she could turn her thoughts to the embryos.

"What I decided to do with my embryos would be final and it would be something I had to live with for the rest of my life. I had to be sure there would be no regrets," she said.

After taking a year off work and consulting with church leaders, she decided to lay them to rest. "I've done a lot of crying over the last five years, weighed down by guilt and sorrow," she said, tearing up.

But in May, she made her decision and "felt at peace".

"To some, they may be bits of cells but each embryo was a child to me and they deserve a proper send-off."

The service for the 12 embryos before they were placed in a niche at a columbarium was a quiet affair.

She declined to allow TNP to attend the service, saying it was a very private moment between her and her 12 "children".

Only her parents and sister were there.

Ms Chen said with more couples going for IVF she wanted them to think through the consequences of the procedures carefully.

"My case may be one in a million. Few people go to IVF and then straight into a divorce but my situation can well apply to any couple," she said.

To remember the 12 "children" she could never bring to term, she bought a ring with 12 tiny diamonds, which she wears every day.

"So I will have them constantly in my thoughts and by my side," she said.

What IVF centres here say

What IVF centres here say

Ten centres provide Assisted Reproduction Treatment (ART) services in Singapore, three in public hospitals.

ART procedures have been available here for about 30 years and the number of patients seeking treatment rose after the Government introduced a co-funding scheme in 2008.

In-vitro Fertilisation (IVF) treatment costs between $7,000 and $14,000. The Government pays up to $3,000 for each cycle, up to a maximum of three cycles.

Like their counterparts in the US, fertility clinics here require a contract to be signed by both partners jointly agreeing to the embryos' ultimate fate.

This legally binding contract gives couples choices in the case of death of one (or both) partners, divorce or other unforeseen circumstances.

Dr Yu Su Ling, who heads the Centre for Assisted Reproduction at Singapore General Hospital:

"The couple make a joint decision in the consent form on the outcome of the frozen embryos, before they embark on the IVF treatment, to address the issue of divorce or death of one of the spouses."

Dr Sadhana Nadarajah, director and senior consultant, KKIVF Centre, KK Women's and Children's Hospital (KKH): 

"KKIVF Centre is governed by the Licensing Terms and Conditions on Assisted Reproduction Services, revised by the Health Ministry in April last year.

"Abiding by the terms... the centre is required to take written instructions from the couple regarding their future plans for the embryos, including the maximum period of storage; provisions for the use or disposal in the event of a separation of the coupleor if the couple are not contactable after reasonable efforts by the centre."

Professor P.C. Wong, head of the Reproductive Endocrinology & Infertility Division at the National University Hospital Women's Centre:

"For couples who opt to freeze their embryos, their prior joint consent is also required with regard to the action taken on the frozen embryos in the event that fertility treatment is stopped voluntarily or involuntarily due to death of one or both spouses, divorce or any given reason.

"Hence, they must decide, in advance, if they want to dispose of the embryos in such an instance, or if they want to donate the embryos - either directly to another couple or purely for legally-permitted research purposes."

Assisted Reproduction Treatment cycles undergone by S'poreans

IVF treatments at KKH (2009 - 2011)

KKIVF Centre served more than 1,000 couples every year from 2009 to last year. It has seen an average increase of about 10 per cent each year.

IVF treatments at NUH

Average of 400 fresh cycles of IVF a year from 2009 to last year. It has noticed a 5 to 10 per cent year-on-year increase in the same period.

Sources: MOH, SGH, KKH, NUH

Embryo 'wars' elsewhere

Embryo 'wars' elsewhere

UNITED STATES

Whenever a couple in the US decides to pursue IVF, there is always the question of what to do with any leftover embryos.

There are no federal statutes that provide a uniform consensus on resolving disputes over the ownership of pre-embryos. Several states have enacted legislation to address the disposal of frozen embryos.

In 2007, a divorced couple applied to the Texas Supreme Court for rights over frozen embryos created while they were still married.

The case pitted the woman's right to have children using the embryos against her ex-husband's right not to have children.

The couple, Randy and Augusta Roman, underwent fertility treatment before they separated and eventually divorced in November 2002.

At first, the district court ruled that the ex-Mrs Roman had a constitutional right to the embryos but this decision was reversed by the Texas First Court of Appeal.

An appeal against this ruling was filed in the Texas Supreme Court but it declined to hear the case and in 2008, the US Supreme Court declined to hear her appeal.

EUROPE

A similar claim went before the European Court of Human Rights in 2007. Ms Natallie Evans fought for the right to use frozen embryos created with her former partner after he withdrew his consent.

The Court's final ruling was that Ms Evan's right to become a parent should not be given more weight than her ex-partner's right not to become a parent.

She lost her appeal.

juditht@sph.com.sg

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