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Frozen embryos’ custody in judge’s hands

A divorced Maryland couple will have to wait a little longer to learn the fate of the nine embryos they created and stored during their marriage.

Judge John Paul Davey heard closing arguments Monday in Prince George’s County Circuit Court over the custody of the frozen embryos as well as the couple’s 3-year-old daughter. Davey said he will rule later, in writing.

Godlove Mbah, of Greenbelt, has asked to have the embryos destroyed.

Honorine Anong, of Upper Marlboro, wants to preserve the embryos because her fallopian tubes have been removed and she says she is unable to conceive.

Anong also says Mbah signed a contract before the procedure at Shady Grove Fertility Center in Washington, D.C., giving her the right to the embryos if the couple separated.

Mbah and Anong married in March 2007 and, after failing to conceive naturally, underwent in vitro fertilization at Shady Grove in July 2008.

The process led to the birth of the couple’s daughter. The remaining embryos were frozen and are stored at the clinic at a cost of $720 a year, which Anong has been paying.

Anong and her attorney, Johnine N. Clark, a solo attorney in Lanham, said the embryos should belong to Anong because that is what the couple agreed to at the clinic.

“To look at the contract is the only way,” Clark said in court.

In court Monday, the attorney for Mbah argued that his signature on the contract was forged and improperly notarized.

Even if the contract were valid when it was signed, his lawyer said, the future of the embryos cannot be based on a contract alone.

“That can’t be the kiss of death,” said the lawyer, Nataly C. Mendocilla, a solo attorney in Upper Marlboro.

Mendocilla cited a similar Massachusetts case, A.Z. v. B.Z. There, a judge ruled that even though the couple had signed a contract, its power was altered since the couple divorced and there was a change in circumstances.

There are no reported cases in Maryland dealing with custody of frozen embryos, although courts in other states have ruled on cases similar to Anong and Mbah’s.

Most have ruled in favor of the father, saying he has a right to choose not to have children.

“Just as we cannot force her to be a mother, we cannot force him to be a father,” Mendocilla said in court.

Clark, however, said a man’s decision to become a father ends with ejaculation.

“It matters little whether [conception] happens in the public lair of a Petri dish or in a fallopian tube,” Clark said in court.

Clark also cited an April decision by the Superior Court of Pennsylvania, which gave the embryos to a woman who could no longer have children after a fight with breast cancer.

Mendocilla, however, said in her closing argument that Anong should still be able to produce eggs even without her fallopian tubes.

Mendocilla also argued that Mbah’s constitutional rights would be violated if Anong were awarded custody of the embryos. Mbah said if Anong eventually had children from the embryos, it would be a personal and financial burden on him. He also said he would have trouble marrying in the future.

“Any woman cannot understand accepting a man who is having children with another woman he has nothing to do with,” Mbah said. “I don’t know what I would explain to a woman if she even said yes.”

Clark, however, contended that Anong’s inability to have children outweighed anything Mbah would have to go through if Anong received custody of the embryos.

“What he does in his life and what he has to deal with is secondary to her not being able to have children every other way,” Clark said.