USA – OHIO Trends and Developments Contributed by: Andrew A Zashin, Amy M Keating, Kyleigh A Weinfurtner and Christopher R Reynolds, Zashin Law
direction on when the courts should determine that security is necessary or how the courts should evaluate whether proposed security is sufficient. Oakes provides some additional contours for the courts – and attorneys – to consider when deter - mining whether security for required for a prop - erty division payment made over time. While it does not fully answer all the questions presented – and while the issue of security remains at the court’s discretion – it does suggest that security can be required in certain circumstances. Controversy Over Treatment of Frozen Embryos in Divorce In E.B. v R.N., one appellate court reversed a trial court decision and ordered that the wife was entitled to use all fourteen of the parties’ frozen embryos from in vitro fertilisation for implantation if she so chose. The trial court had determined that the frozen embryos were marital property and used a contractual approach to address their disposition. This particular appellate court stated that all three main approaches to the disposition of frozen embryos in Ohio (contractual, method, contemporaneous-mutual-consent method, and balance method) are “inadequate in one way or another”, requesting that this problem “must be rectified by action by the legislature.” The appellate court goes on to reject the view that the frozen embryos are property at all, but that they are “life or the potential for life.” The opinion emphasises that Ohio’s public policy prefers the preservation and continuation of life whenever constitutionally permissible. It advo - cates that, until there is better “statutory guid - ance” on this issue to further direct the court, courts should determine these matters “upon their unique facts taking into account the fact that the frozen embryos are not property, but life
or the potential for life.” The court remanded the case only for the husband to be given an oppor - tunity to set forth his wishes “with respect to the potential offspring” which could be incorporated into the amended decree. By rejecting all three of the primary approaches/ methods to disposition of frozen embryos, this appellate court creates a difference (“split”) between this appellate district and others in Ohio on this important issue. In October 2024, the Ohio Supreme Court declined to accept jurisdiction to address this case. Only time will determine whether other Ohio appellate courts follow the E.B. court or whether it becomes an outlier appellate jurisdiction on this issue. Addi - tionally, Ohio waits to see if the legislature will accept this court’s call for legislative action and statutory guidance. As in vitro fertilization and other artificial repro - ductive technology become increasingly more common, Ohio family law attorneys will continue to encounter this issue in divorce cases. As a result, Ohio attorneys will be closely following this issue so that they can advise their clients – particularly those in this appellate district – and understand additional developments in this area of law. 2025 and Beyond While 2024 did not bring Ohio any significant legal changes, developments continue in family law that impact attorney advice as well as client (or potential client) decisions.
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