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 are marrying already having stored frozen sperm, eggs, or embryos in order to preserve their fertility. In addition, couples may create embryos or freeze their gametes during marriage. The question is how these will 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.
No Prenup: Eggs, Sperm or Embryos created before marriage.
In most states, property owned before the marriage remains the separate property of the party after marriage. 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 it. (Note that in Louisiana, and possibly other states by the time of this writing, embryos cannot be owned but are considered human life.) This would include one party’s acquisition of donor sperm, eggs, or embryos before marriage.
An increasing number of couples create embryos together when they are not married. These embryos would likely be jointly owned unless the parties had an agreement that the embryos would only be owned by one person. This would normally require an embryo donation agreement.
Note that 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 no longer be the separate property of the party that created and owned the eggs.
These embryos would likely require a disposition in divorce. But since the embryos are owned by both parties but also may be genetically related to both parents, causing possible parentage after marriage, it is unlikely the embryos will be divided 50/50 by agreement. Usually, the parties will need to come up with a parenting arrangement or deal with paternity from the embryos. This may require an embryo donation agreement so that one party is not named as a parent or responsible for custody or child support in the future. It should be noted that Arizona has a law that will require 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.
Prenup Benefits: 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. While the prenup by itself is unlikely to effectuate this disposition without another agreement such as an embryo donation agreement or a disposition document signed at the clinic, a party could enforce the term in the prenup if the other party acts inconsistently or does not cooperate.
No Prenup: 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).
Prenup Benefits: Eggs, Sperm or Embryos created after 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 are likely to 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 will 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.
Be aware that the law governing assisted reproduction is changing at near light speed and this information may be obsolete by the time of reading. Furthermore, the parties’ agreement may be invalidated by a future law or court decision, and there is scarce case law addressing the issue at this time. Nonetheless, one should consider listing their frozen gametes as property so that it may remain separate property should one’s marriage not work out. Moreover, if one party 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 effectuate it (such as an embryo donation agreement) to avoid protracted and painful disputes in the future. Consider retaining an attorney who is knowledgeable about reproductive law, surrogacy law, and gamete donation, so you may be able to 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.