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Assisted Reproduction

“Unfit” Mother Wins Custody Dispute With Ex-Husband Over Their Frozen Embryos

A Maryland Circuit Court Judge has awarded custody of 9 frozen embryos to a judicially declared “unfit mother” over the objection of her ex-husband:

A Maryland woman has gained custody of nine frozen embryos she created with her ex-husband, according to an attorney working on the case. Godlove Mbah of Greenbelt and his ex-wife, Honorine Anong of Upper Marlboro, were divorced in May 2012, but disputes have continued over the couple’s stored embryos and a 3-year-old daughter previously conceived from one their embryos.

Though Mbah asked to have them destroyed, according to The Daily Record, Maryland Circuit Court Judge John Paul Davey signed an order in December giving sole custody of the embryos to Anong—a first-of-its-kind ruling in Maryland. Davey found that the commercial contract the couple signed at the Shady Grove Fertility Clinic in July 2008—prior to the procedure—was valid, according to attorneys involved in the case. That contract said the embryos would be given to Anong in case of a separation. Nataly Mendocilla, Mbah’s attorney, argued that her client’s signature wasn’t notarized.

Although Mbah lost the dispute over the embryos, he was awarded sole custody of the couple’s 3-year-old daughter in April after her mother was found “unfit to have custody”, Mendocilla said. “I disagree with the court’s opinion,” Johnine Clark, Anong’s attorney, said of the custody issue. According to Clark, the judge based his decision on an incident when Anong left her toddler alone for a few hours during the day. Mbah also reported other occurences as well, but Clark denied those reports.

However, Mbah’s attorney argued that giving Anong custody of the embryos is taking away her client’s rights to choose whether or not to father another child. Anong wants to have more children, Mendocilla said, and now Mbah is obligated to be a parent against his will “with his ex-wife who has lost custody of the one child they do have because of neglect.”

Mendocilla believes her client should have equal rights in that decision. Clark contends that her client cannot have children by any other means because her fallopian tubes were removed to help her conceive through in vitro fertilization. The frozen embryos are the only way Anong can have more children, Clark said.

But Mendocilla argued that it is a matter of public policy. “If a woman can clearly have an abortion of a known viable fetus, why can we not apply those same laws to a father who does not want to be a parent?” she asked.

Currently, Anong has the right to implant the embryos, although Mbah’s attorney has filed a stay to prevent any action pending an appeal.

The ruling is disappointing though not surprising. While most courts are reluctant to compel a person to become a parent against their will, Mr. Mbah did execute an agreement with his fertility clinic expressly agreeing that his then-wife would be entitled to the remaining cryopreserved embryos should they separate or divorce. This consent agreement distinguishes this case from the many that have preceded it where courts have generally been unwilling to grant custody of frozen embryos to an ex-spouse — even if those embryos represented the only opportunity for that individual to become a genetic parent.

What makes this case so sensational and invokes such a visceral reaction is the fact that Ms. Anong has been judicially determined to be unfit as a parent as it relates to her first child. While I am not diminishing the judicially imposed moral and likely financial obligation Mr. Mbah will have for any other child born as a result of the implantation of these embryos, the court was presented with a traditional contract dispute and regardless of the inequities involved, properly interpreted the contract and Mr. Mbah’s obligations thereunder. What remains unanswered is whether the Maryland Office of Children’s Services will take action against Ms. Anong to remove any other children from her home — which will add yet another unwanted burden upon Mr. Mbah.

Parenthetically, the article is unclear as to whether Ms. Anong is actually capable of having more children of her own without the participation of Mr. Mbah. According to the story, Ms. Anong’s fallopian tubes were removed. Normally when undergoing a salpingectomy, the ovaries are left. So while Ms. Anong apparently no longer has fallopian tubes, there is nothing in the article that indicates that she is incapable of producing viable eggs and having those eggs aspirated and embryos created via IVF with the assistance of a sperm donor.

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