Imagine enduring weeks of painful hormone injections, only to face the heart-wrenching possibility of losing your chance at motherhood in a divorce. This is the stark reality for many women undergoing IVF. The physically demanding process, coupled with the shorter fertility window women face compared to men, and societal pressures to become a mother, underscores the critical importance of having clear agreements on embryo disposition. Without such protections, women risk losing not only their embryos but also their dreams of becoming mothers.
The process of IVF is physically taxing on the woman
To create viable embryos through IVF is harder on the woman than it is on the man–point, blank, period. First, there are the hormone injections. It’s not just one or two shots but multiple injections for weeks. Second, there are the side effects. The injections are powerful hormones that can cause mood swings, bloating, headaches, and even nausea.
But that’s not all. Once the woman’s eggs are mature, it’s time for the egg retrieval procedure. This involves inserting a needle through your vaginal wall to extract the eggs from your ovaries. It’s done under sedation, but there can still be some discomfort and cramping afterward.
So, as you can see, the physical toll on a woman undergoing IVF is pretty intense. There’s a lot of time, discomfort, and potential side effects involved. A woman who has gone through IVF or may go through IVF in the future will want to ensure her efforts are protected in whichever way aligns with her and her partner’s goals.
Women have shorter periods of fertility than men
To put it generally, women’s fertility starts declining around 30, whereas men’s fertility doesn’t start declining until as late as 45. This means if a woman and man divorce a few years after embryos have been created, the woman’s fertility may have dramatically declined, leaving her unable to produce any more eggs. Leaving her only chance at motherhood with these embryos. On the other hand, the man may still be young enough to reproduce naturally or through assisted technologies, given that his fertility window is longer.
For example, let’s say Sarah and John got married at 35, made embryos at 36, and ended up divorcing at 38. By the time they finalize the divorce and are ready to move on, they may be turning 39 or 40. This will leave Sarah with a potentially diminished egg reserve and no chance of becoming a biological mother without their embryos. On the other hand, John still has a few years of fertility and can become a parent if he wishes.
Women have stronger societal expectations to become mothers
There is a major societal pressure on women in general to become mothers. In fact, a woman’s worth is often tied to their motherhood. A study revealed that a staggering 33% of childless women felt excluded from their community based on the simple fact that they did not have children. These women also reported feeling stereotyped and judged by others for not having kids.
This pressure can be particularly devastating for women in divorce situations where their ability to have biological children may be tied to their frozen embryos. Regardless of personal desires, the fear of societal ostracism for not having children can become a driving force in their decisions and emotional well-being. It’s a complex issue that goes beyond individual choices and highlights the need for solid agreements regarding embryo distribution between a couple.
Real story: One woman’s cancer diagnosis led her to IVF, and, ultimately, she lost the right to her embryos in a divorce
A recent case from 2020 (Terrell v. Torres) is a cautionary tale to women who want to become mothers and demonstrates how critically important having embryo disposition agreements in place is.
The background
A woman, Ruby Torres, and her future husband, John Terrell, went through IVF shortly after Ruby’s cancer diagnosis at just 33 years old. The cancer treatment was likely to diminish her fertility and chances of becoming a biological mother. So, she decided to go through IVF to increase her odds of fulfilling her dream of being a mom. Ruby and John went through the process and ended up with 17 viable embryos. Yay! They also signed off on a fertility clinic standard form that said (in a nutshell) that if they separate, either they both have to agree for one person to use the embryos or they will donate them to someone else. Unfortunately, they eventually filed for divorce before they could use any embryos to get pregnant. Ruby requested that the court grant her ownership of the embryos to achieve pregnancy. John objected and said no, he wants to donate them to an unknown third party. They brought this issue all the way up to the Arizona Supreme Court.
The court’s holding
The AZ Supreme Court sided with John and ordered the embryos to be donated to a third party. Yes, that’s right. Even though Ruby and John were the genetic “parents” of these embryos, and despite Ruby wanting to use them herself for pregnancy, the court ordered that they be donated to a random couple instead.
Wait, what? The case basically boiled down to nuances in the language of the standardized fertility clinic form that John and Ruby signed. The court interpreted the specific language to mean that they both agreed to donate the embryos if both spouses couldn’t agree that one person should have them. Yikes. Moral of the story? Get an agreement in place with really strong and clear language laying out what you want to happen to your embryos in the event of a divorce or death.
How a prenup can help
Prenuptial agreements can provide a secure environment for negotiating and deciding the disposition of embryos in the event of divorce. The process of creating a prenup is much more thoughtful and deliberate compared to hastily filling out a fertility clinic consent form immediately before a procedure. Huge life-altering decisions such as the right to become a mother should not be quickly signed away in a doctor’s office.
Prenups offer a solution to include clauses regarding embryo distribution, including:
- What happens to unused embryos while still married (i.e., if you aren’t getting divorced but still have embryos remaining)
- What happens to embryos in the event of a divorce
- What should happen to embryos if one spouse passes away
- What should happen to embryos if both spouses die simultaneously (e.g., in a car accident)
- Who is responsible for paying the embryo storage fees
The bottom line
In conclusion, divorce-related disputes over embryo disposition impact women more significantly due to the physically demanding IVF process, shorter fertility windows, and societal pressures to become mothers. The case of Ruby Torres and John Terrell is a cautionary tale that underscores the importance of having clear and strong agreements on what happens to embryos. Without these protections, women risk losing their embryos and their dreams of motherhood. Making sure these agreements, such as in a prenup, can help safeguard women’s reproductive hopes and aspirations.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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