Future Family Planning:Why You Should Consider Adding Reproductive Property Clauses In Your Prenup
Ever heard of IVF or egg freezing or IUI? These are all forms of assisted reproductive technology (ART) that help people with infertility, couples with illnesses, same-sex couples, and others have children. According to the CDC, approximately 2.3% of all infants born each year are conceived by ART.
ART represents a remarkable medical advancement, enabling thousands worldwide to achieve pregnancies and become parents when otherwise not able to.
However, it also introduces new and uncharted territory for legal issues. For instance, if a married couple creates embryos and later divorces without using them, who gets “custody” of the embryos? It depends on your state.
So… what can you do about it? Three words: Consider. A. Prenup. A prenup with reproductive property clauses can help avoid any misunderstandings surrounding what should happen to your future or existing reproductive property, like embryos or frozen eggs. Let’s dive in.
A quick biology lesson
What are embryos, ova (eggs), and sperm? If you’re not sure, stay tuned to learn what each of these terms means so you can follow along easily.
– Ova: Commonly known as “eggs,” these are the female reproductive cells.
– Sperm: These are the male reproductive cells.
– Pre-Embryos (often referred to simply as “Embryos”): These are formed when an egg is fertilized by sperm. They represent the earliest stage of development for a future baby.
– ART (Assisted Reproductive Technology): This is the medical technology used to help infertile people conceive children. This could be through IVF, IUI, egg retrieval, or another method of technology used for the goal of achieving pregnancy.
– Reproductive Property: This term may refer to pre-embryos (embryos), eggs, or sperm.
– IVF (In Vitro Fertilization): A medical procedure used to assist with conception. It involves retrieving eggs and sperm, fertilizing them in a laboratory, and then implanting the resulting embryos into the uterus. For some context, the retrieval of eggs from the woman is not an easy feat–it involves months of hormonal medication and a painful procedure.
How reproductive property clauses work
Reproductive property clauses are clauses that you might decide to put in your prenup that discuss what happens to future or existing embryos if you get a divorce or die. It can also discuss ownership, fees, and other related topics. Let’s discuss these potential clauses in a little more depth below:
Disposition of embryos upon divorce or death
This type of reproductive property clause says who gets to keep the embryos. You can also agree to something else. Here are some of the options you may have when deciding what should happen to your embryos:
- Allow one ex-spouse to retain complete ownership
- Allow the ex-spouses to evenly share the embryos
- Donate the embryos to a specific person or couple
- Donate the embryos to any person looking to implant to achieve pregnancy
- Respectfully discard and/or destroy of the embryos according to medical guidelines
Ownership of unfertilized reproductive property
Payment of fees
That brings us to our next point: who pays for the storage fees? If one day, you and your partner decide to go down this route, and all of your assets are primarily kept separate, who’s going to cover the expenses? For example, IVF itself is quite expensive. Not to mention the storage of the embryos.
Why including reproductive clauses in a prenup are especially important for women
Biologically, men typically remain fertile longer than women. Women’s “biological clocks” tend to tick a lot faster, leaving women infertile at a younger age than men. Making sure you, as a woman, are the owner of your reproductive property and/or any embryos you have created may be important in the event of a divorce.
Think of it this way: if you (a woman) get divorced at 40 and are required to dispose of your embryos and reproductive property, you may never be able to achieve pregnancy, whereas your ex-husband, also 40, may still be fertile and able to become a biological parent one day.
Not to mention, creating embryos places a significantly greater physical burden on women than men. Women endure months of hormone injections, often with harsh side effects, and the egg retrieval procedure itself can be painful. Essentially, women invest considerably more time, discomfort, and personal sacrifice in the creation of embryos.
The laws on embryo disposition disputes
So, what happens if two people can’t decide on what to do with their embryos? What does the law say? Well, it’s not super straightforward. For starters, embryo disposition is a state-by-state matter, so if you have embryos and you have a dispute over what should happen to them, it will be dealt with on a state-by-state basis.
Courts typically take one of three approaches to making this determination: the balancing test approach, the mutual consent approach, or the contractual approach.
- The balancing test approach involves weighing the procreation rights of both parties based on privacy protections in state and federal constitutions. In other words, someone’s right to procreate versus someone’s right NOT to procreate.
- The mutual consent approach requires agreement between the spouses. The court will generally require the embryos to stay in storage until a decision can be reached.
- The contractual approach gives weight to any consent form or contract signed between the parties before undergoing IVF. Most states utilize the contractual approach.
It’s important to note that every state, no matter which approach it takes, considers a written agreement before evaluating the situation. (Spoiler alert: this is why a prenup with reproductive property clauses is so important).
How a prenup helps
Most states favor the decisions couples make about their reproductive property disposition in the contracts they sign. Be it a consent form, an embryo disposition contract, or prenuptial agreement with disposition clauses. In fact, thus far, every single case in the US that has dealt with a dispute over the disposition of embryos first analyzes whether or not there was a contract. Why? Because courts don’t want to meddle in the question of procreation, which is a highly personal issue, not typically one for a court to decide.
Putting reproductive clauses in your prenup, such as the disposition of embryos, can help protect your right to procreate (or not procreate) in the future.
As a bit of context, most IVF or ART clinics will require you to sign off on a consent form before undergoing any procedure. This consent form may include statements about what you want to do with the embryos in the event of a divorce, death, or lack of storage payments. For instance, if you get a divorce, what should happen to the embryos? Or, if you stop paying for storage fees, you may have to consent to the disposal of the embryos.
However, these consent forms typically aren’t very thorough or well-thought-through by the signer. They typically come as standard forms (think: paperwork you fill out at a doctor’s office). On the other hand, the process of getting a prenup is much more thorough. Getting a prenup involves in-depth conversations and alignment about other marital topics. The process may involve attorneys, financial disclosure, and other procedural requirements like waiting periods, notarization, witnesses, etc. As you can see, discussing these topics with your partner during the prenup conversation may elicit a better decision-making process than quickly checking off items on a standard consent form at a doctor’s office.
The laws on embryo disposition disputes
Let’s discuss some real cases in which real courts have handled the issue of what to do with a couple’s embryos upon divorce.
Contractual Approach
What happens when one ex wants to use the embryos for pregnancy but they signed a consent form stating otherwise? (Kass v. Kass, 696 N.E.2d 174 (N.Y. App. Ct. 1998))
What did the court say? This New York Court of Appeals used the contractual approach to decide this matter, which essentially gives weight to any written agreement between a couple. The court denied the wife’s request to use the embryos to achieve pregnancy, emphasizing the clear intent stated in their initial agreement. The court believed that such personal decisions should be made by the individuals involved, thus upholding the consent form they signed.
Forced Mutual Consent Approach
What happens when one ex-spouse wants to use embryos against the other ex-spouse’s wishes, and there is no agreement in place? (In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003))
The result? This Iowa court utilized the contemporaneous approach and stated that agreements entered into when starting IVF are enforceable and binding but are subject to the right of either party to change his or her mind regarding the disposition of embryos. If the spouses cannot reach a mutual decision, then there will be no transfer, use, release, or disposition of the embryos until both people agree.
Balancing Test Approach
What happens when one ex-spouse wants to donate the embryos for impregnation, and the other does not? (J.B. v. M.B., 783 A.2d 707 (NJ 2001))
The result? This court decided that the husband’s right to procreate was not taken away if they sided with the ex-wife. On the other hand, the ex-wife’s right to NOT procreate was taken away by forcing the embryos to be donated and used. Thus, the embryos were ordered to be disposed of according to the appropriate medical guidelines.
A Cautionary Tale
An Arizona court orders embryos to be donated to a third party despite one of the genetic contributors wanting to keep the embryos for pregnancy. (Terrell v. Torres, 248 Ariz. 47 (AZ 2020).
The result? The court said the embryos should be donated to a third party. Yes, you read that right.
Their fertility clinic contract wasn’t super straightforward. In a nutshell, it said that they both had to agree on what to do with the embryos, OR the embryos would be donated to another couple. Since they were at odds, the court defaulted to donation, even though the woman in this case desperately wanted to use them herself. After all, she went through IVF before cancer treatments in order to have kids one day.
The bottom line is that this is an unfathomable result of an embryo disposition dispute. A better solution would have been to put in place an agreement between the couple that was much clearer and more defined as to what should happen to the embryos.
You’re writing your life story together. Make sure you’re on the same page.
Sign-up. Complete prenup. Get married.
