Disputes over embryos created during a marriage can lead to emotionally and legally difficult questions when the relationship ends. Courts across the country are still developing clear standards for how to handle frozen embryos in divorce cases. While laws vary by state, the issue usually centers on whether the embryos should be treated as marital property or as potential life—and whether one party can use or destroy them without the other’s consent.
Our friends at Merel Family Law discuss how these matters are generally handled in divorce and what individuals should know before entering into assisted reproduction agreements with a partner or spouse.
What Courts Typically Consider
When frozen embryos are involved in the dissolution of a marriage, most states apply contract law but it is important to know for sure what the laws in your state pertaining to this say. If the couple signed a fertility clinic agreement that included terms about what should happen to the embryos in the event of divorce, the court is likely to follow that agreement but there can be situations that may warrant the court to modify this.
If there is no clear agreement or if the agreement is silent on disposition after divorce, the court may weigh each party’s interest. Some courts side with the party who does not wish to become a parent, especially if forcing parenthood would violate their constitutional rights. Others may consider the intentions of both individuals when the embryos were created, especially in cases where one party can no longer conceive naturally.
Key Factors That Influence Outcomes
When a court must make a decision, several factors may be reviewed:
- Whether a written agreement exists
- The ability of either party to have children through other means
- The original intent behind the embryo creation
- Moral, religious, or personal beliefs presented during the case
- The interests of both individuals in using or not using the embryos
There is no blanket formula or one single factor that will guarantee a specific outcome. Each case is decided based on the facts presented and the legal standards of that jurisdiction.
Why Agreements Matter
Having a clear, written agreement before starting in vitro fertilization or any other form of assisted reproduction can reduce conflict in the event of separation or divorce. Most fertility clinics require patients to sign documents outlining their wishes for embryo use, storage, or disposal, but those forms may not always cover legal outcomes in court.
Working with a firm that focuses on Family Formation & Assisted/Third Party Reproduction (“ART”) can help both parties create a legally sound agreement that reflects their values and goals. This is especially important for individuals who want to preserve or restrict the future use of genetic material.
How A Lawyer Can Help
In cases where an embryo dispute arises during divorce, working with a divorce lawyer who is familiar with both family law and assisted reproduction matters is important. The court may require detailed evidence about the embryo creation process, consent forms, and each party’s medical or financial situation. Legal representation helps clarify what rights and responsibilities each person has regarding the embryos and helps present a strong case in court.
Moving Forward With Informed Decisions
Going through a divorce is tough at best but when there are legal disputes involving embryos, the level of personal attachment and emotion can be positively overwhelming. There is no one-size-fits-all answer, but preparation can make a significant difference. Those considering fertility preservation or ART options with a partner should think carefully about what could happen if the relationship changes.
If you are entering into a Family Formation & Assisted/Third Party Reproduction (“ART”) arrangement, it’s a good idea to discuss the legal implications with an experienced attorney in advance. Being proactive can help reduce uncertainty in the future.
