As a family law attorney specializing in third-party reproduction (i.e., surrogacy, egg donation, sperm and embryo donation), one issue that I pay attention to is the status of frozen sperm, eggs, and embryos in either the prenup stage or in divorce. As more and more couples delay parenting for their careers and marry later in life, more individuals who are getting married already have stored frozen sperm, eggs, or embryos. In addition, couples may create embryos or freeze their gametes during marriage. The question is, how will sperm, eggs, or embryos be treated in the event of divorce? As is our practice when we represent someone in reviewing a prenuptial agreement, we will first explain how things would work if you do not have a prenuptial agreement in place, and then how it may change if you do have a prenuptial agreement in place. Let’s dive in.
No prenup: What happens to eggs, sperm, or embryos created before marriage
An increasing number of couples create embryos together when they are not yet married. In most states, the default rule is that property owned before the marriage remains the separate property of the party after marriage (with some exceptions). As a tangible piece of property, the eggs, sperm, or embryos created before the marriage could remain the property of the party responsible for creating them. (Note that in Louisiana, and a few other states, by the time of this writing, embryos cannot be owned but are considered human life.)
However, if frozen eggs owned by one party created before the marriage are then thawed, fertilized after the marriage by the other party’s sperm, then this could create joint property or community property in a community property state, and the resulting embryos would no longer be considered the separate property of the party that created and owned the eggs.
Embryos that are considered community property (or joint property) would likely require a disposition in divorce where a court decides who gets to keep them. How courts treat this varies. Some states will rely on any contractual agreement between the parties, such as a consent form or embryo disposition agreement. Other states will conduct a balancing test. Arizona is an outlier and has a law that requires the court to grant custody of frozen embryos to the party that plans to use them to give birth, and the party who does not wish to use them will have no parental responsibility.
With a prenup: What happens to eggs, sperm, or embryos created before marriage?
The benefit of a prenuptial agreement is that it would make clear the ownership of the gametes or embryos, and the parties could make an agreement ahead of time as to whether the ownership is affected if the eggs or sperm are fertilized. A prenup could also document the parties’ intentions as to the disposition of embryos in the event of separation or divorce. For example, the couple may choose one of the following options when determining the disposition of their embryos:
- One party keeps the embryos
- Both parties split the embryos up equally
- They destroy the embryos
- They donate the embryos to science
- They donate the embryos to another couple
- They return the embryos to the donor (if applicable)
These same options can also apply to frozen eggs and frozen sperm.
No prenup: What happens to eggs, sperm, or embryos created during the marriage?
In a community property state, it is unsettled whether frozen sperm or eggs are the separate property of the party creating them or community property. It is also unsettled whether embryos are community property, though it would seem more likely that they are, or at least some kind of jointly owned property. Community property would normally be divisible upon separation or divorce, but embryos are not ordinarily split 50/50 by the court by default. If left to divorce court, it is likely to require an agreement or order the destruction of the embryos if the parties are unable to agree (although in some states, it might go the other way).
With a prenup: What happens to eggs, sperm, or embryos created during marriage
A prenuptial agreement can dispose of property that is not yet owned or created at the time of signing. So, the prenup could potentially address who will be the owner of gametes or embryos created during the marriage in the event of separation and divorce. This is a difficult question not to be taken lightly, as the parties may change their minds during marriage. One party may wish to parent while another may not be interested. The prenup must also address whether subsequent executed forms/documents will prevail over the prenup or not, as the IVF clinic may have the parties fill out a form that handles the disposition of embryos in the event of divorce. At any rate, the parties may wish to discuss this as a potential term for a prenup if the parties plan to do IVF or obtain a surrogate once they are married.
The bottom line on including embryos in your prenup
Be aware that the law governing assisted reproduction is changing at near-light speed, and this information changes quickly. In addition, any couple’s prenup or embryo disposition agreement may be invalidated by a future law or court decision, and there is scarce case law addressing the issue at this time. With all of that said, you should still consider listing frozen embryos, eggs, and sperm as property so that they may remain separate property should one’s marriage not work out. Plus, if one partner strongly desires children, while the other is ambivalent, it could be prudent to memorialize how the embryos should be disposed of in the prenup and set forth future means to enforce it to avoid protracted and painful disputes in the future. Consider retaining an ART attorney who is knowledgeable about reproductive law, surrogacy law, and gamete donation, so you can spell that out in your prenuptial agreement or at least learn what your future rights will be without an agreement.
Ralph Tsong is an attorney with over 20 years of experience. Ralph is on the board of directors of the Southern California Chinese Lawyers Association and is a Fellow of the Academy of American Adoption and Assisted Reproductive Attorneys (AAAA) and Academy of California Adoption and ART Lawyers (ACAL). Ralph was selected as a Super Lawyer by Thomson Reuters in 2023.
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