If you’re in the world of fertility treatments, we totally understand the emotional rollercoaster you’re on. From the stressful unknowns to the painful procedures, it’s a really tough road to travel. The last thing you want to worry about is legal issues. But, unfortunately, you do need to consider legalities if you are undergoing assisted reproductive technology (ART) treatments, such as in vitro fertilization (IVF). Let’s start with one pressing legal question you will need to address: Do the forms you fill out with the IVF clinic really matter? The short answer? It depends on your state. The best practice is to get something else in writing, such as in a prenup or an embryo disposition agreement, to ensure your true intentions are memorialized.
Understanding IVF clinic forms
When we talk about “IVF clinic forms,” we’re referring to the specific legal paperwork you sign before undergoing ART procedures like IVF. You will likely sign many forms as a part of this process. The ones we are focused on here may be called something like “Embryo Cryopreservation & Embryo Disposition” or “Ownership and Disposition of Frozen Embryos.” These forms aim to determine what happens to the embryos in various situations, including the death of one or both partners, non-payment of storage fees, a set storage time limit, and, most importantly, for our discussion, divorce or separation of the couple.
Multiple Maryland cases that ignored an IVF clinic form
Here are two examples of how Maryland courts may determine that your IVF clinic form is not enforceable because it is too boilerplate.
Case #1: Huenke v. Dennis, Case No. 169618-FL (March 1, 2022)
In a recent case (2022) from Maryland, a divorcing couple with one child signed a consent form with Shady Grove Fertility Clinic, which stated that if they were to separate, divorce, or die, they would revoke consent for either spouse to use the embryos. Both spouses signed this form on two separate occasions. They also signed additional forms that stated what would happen if no determination as to what to do with the embryos took place before the wife’s 51st birthday. In that consent form, they agreed they would relinquish control of the embryos to the fertility clinic.
The dispute
The wife said they never discussed what should happen to the frozen embryos in the case of death or divorce, while the husband argued that they did discuss it. In addition, the wife stated that discarding embryos went against her religion.
The applicable law
This Maryland court stated that they would first look to an agreement in place as long as such an agreement truly reflects the intent of the parties (and is not just boilerplate form language). In the absence of an agreement, a balancing of interests test will be applied.
“A form contract is a contract that is usually drafted by a business or used within a particular industry, containing a set of preprinted clauses that are only modified slightly to meet specific situations. Where a form contract does not manifest the intent of the progenitors–but rather that of the fertility clinic–courts should not hesitate to turn to the balancing test to determine the progenitors’ procreative rights.”
The court decided to disregard the fact that there was a signed clinic form because it determined that the form, which was, of course, created by Shady Grove, failed to demonstrate the parties’ intent as it relates to the disposition of their embryos and was therefore unenforceable. The court proceeded to the balancing test as if no clinic form existed.
Factors considered in the balancing test included:
- The intended use of the embryos
- The ability of the parties to have children otherwise
- The parties’ original reason for undergoing IVF
- The potential burden on the person avoiding becoming a parent
- Any bad faith actions from either party
- Any other relevant considerations
- Factors that are NOT permitted to be considered: Financial distinctions between parties, the number of existing children, and reasonable alternatives such as adoption.
Outcome of the balancing test
The court found that after analyzing all of the factors above, the balancing test weighed in favor of the husband, the party trying to avoid becoming a parent. The court awarded control and custody of the embryos to the husband so that the embryos could be donated to research.
The bottom line? In Maryland, if a couple only has a clinic form in place, and the clinic form is too boilerplate, and there is no evidence that the couple truly intended for the form’s terms to apply, the forms are likely unenforceable, and a court will apply a balancing test to determine the disposition of embryos.
Case #2: Jocelyn P. v. Joshua P., 250 Md. App. 435 (2021)
This Maryland case involved a divorcing couple who disagreed on what to do with unused embryos. The wife wanted to use them for conception, while the husband wanted them destroyed. This case involved an oral agreement (evidence of which was provided in testimony from both spouses) where they verbally agreed to give the embryos a chance at life “no matter what.” However, the couple also signed an IVF clinic form, which stated that the clinic would not take any action in the event of a disagreement over the embryos until the parties had a formal agreement stating what to do. In other words, the IVF form was forcing mutual agreement upon the couple.
The result? The appellate court threw out the IVF form requiring mutual agreement. The court explained that the IVF form did not match the parties’ intentions because it was an agreement to agree in the future. The appellate court directed the circuit court (the lower court) to review the case again and apply the balancing test, suggesting that a better representation of the parties’ intentions was the oral agreement they made together, where they stated that the embryos should have a chance at life, rather than the boilerplate form drafted by the clinic.
The circuit court found that the parties’ oral agreement only applied to the disposition of the embryos during the parties’ marriage and was not applicable in the case of divorce. After applying the balancing test, the circuit court awarded the embryos to the husband. In 2023, the wife appealed this decision, and the appellate court sided with her, reasoning that the parties’ oral agreement to give the embryos a chance at life “no matter what” applied to the situation where they were divorced, given the consistent testimony both parties provided regarding such discussions.
The bottom line? In Maryland, a prior oral agreement between spouses may hold more legal weight than IVF clinic forms if the court concludes that the forms do not clearly illustrate the intent of the parties.
Cases in other states that upheld IVF clinic forms
Let’s dig into some real-life situations where courts upheld IVF clinic forms and enforced whatever terms the couple agreed to in the document.
Case #1: Terrell v. Torres, 248 Ariz. 47 (AZ 2020)
A divorcing Arizona couple, who had undergone IVF due to the wife’s cancer diagnosis, found themselves at odds over their remaining embryos. She wanted to use them to have a child, while he wished to donate them. Their fertility clinic form, unfortunately, didn’t clearly address this scenario, stating (essentially) that embryos would be donated if the couple couldn’t agree.
This ambiguity led to a difficult outcome for the wife, who wanted to use the embryos for conception due to her infertility from her cancer treatments. The court ordered the embryos to be donated, despite the wife’s desperate desire to use them. The court emphasized that its reasoning was that the IVF clinic form was a contract to which the parties had agreed. The court emphasized the importance of honoring contracts, especially in the sensitive area of embryo disposition.
Moral of the story? States are all over the map on whether they will enforce the selections in a clinic form. It’s best to include embryo disposition clauses in a prenuptial or marital agreement to avoid relying on conflicting state laws.
Case #2: Roman v. Roman, 193 S.W.3d 40 (Tex. Ct. App. 2006)
In an older case from Texas, Roman v. Roman, a Texas court ruled that the terms of a prior IVF clinic form between a divorcing couple regarding the disposition of their frozen embryos must be upheld. The couple agreed in the clinic form to dispose of the embryos in the event of divorce.
Despite the wife’s claim that they never discussed what would happen to the embryos if they divorced, the court determined that the clinic form’s language was clear and unambiguous, requiring the terms to be followed. This TX court emphasized the importance of honoring the couple’s prior voluntary agreement, even when one party seemed to change their mind in the intervening years.
So…do IVF clinic forms really matter?
Ultimately, the weight given to IVF clinic forms varies depending on individual circumstances and state laws. While these forms can play a role in legal outcomes, they might not always be the deciding factor. To ensure your wishes regarding embryos are honored, it’s strongly recommended to document them in a separate written agreement with your spouse or partner. This could be in a prenup or postnup with embryo disposition clauses or a separate embryo disposition agreement. Such an agreement is likely to hold more weight legally than a hastily signed clinic form.
Rachel Wexler, Esq. is a partner attorney at Trachman Law Center, LLC, a law firm focused on family formation law, protection of LGBTQ+ parental rights, and estate planning. Trachman Law Center represents clients in California, Colorado, Montana, New Jersey, New Mexico, and New York. Rachel represents individuals, couples, and families of all backgrounds and sexual orientations in every step of the surrogacy and egg, sperm, and embryo donation process, in addition to providing clients with a full suite of estate planning services and marital agreements.
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