Thinking about tying the knot? While you’re planning the big day and dreaming about the future, chances are, family planning will come up. Even if you’re not quite ready for it yet, it’s never too early to start having those talks. Around 1 in 6 people experience infertility, and with the rise of assisted reproductive technologies (ART), like in vitro fertilization (IVF), the Garden State is seeing a boom in ART births—5% of all infants here are conceived using ART!
So, if building a family is on the horizon, here’s something you might want to consider: an embryo clause in your prenup. Why? Because when it comes to the fate of embryos created through IVF, the legal landscape is constantly changing, and you want to ensure that your wishes for family planning are met.
Why is embryo disposition important?
During IVF, embryos are created and often frozen for future use. But what happens to them if the relationship doesn’t work out? Imagine you go through taxing fertility treatments, and create and freeze embryos, only to end your marriage before you have a chance to conceive. Now what? Who owns the embryos? What do you do with them? You can keep them in storage for future use, donate them, or destroy them, but who gets to make that decision?
This is a tough thing to think about when you’re planning a marriage or fertility treatments, but having this important conversation early on can save a lot of stress later. IVF can be tough on the body and the mind, and the last thing you want is a messy legal battle when emotions are running high.
The law is rapidly evolving to keep up with advancing reproductive technologies, which means you also don’t want to leave this important decision up to a court. A prenup with embryo clauses is one way to plan ahead, allowing you to control the outcome rather than leaving it up to the court. As each state manages this differently, it’s important to understand how New Jersey handles embryo disposition disputes. So, let’s break it down and get into it.
No prenup or embryo disposition agreement? Here’s what could happen
The general approach NJ courts take is to first look at whether any agreement exists between the couple outlining the embryos’ fate. If there is no agreement, the courts then turn to balancing the parties’ interests. Without a pre-existing agreement and no statutory guidance, New Jersey courts are left to rely on previous case law decisions, which require a court to conduct a balancing test absent an enforceable embryo disposition agreement.
In the seminal 2001 case J.B. v. M.B., a couple going through a divorce disagreed about the fate of their frozen embryos. The wife wanted them destroyed, while the husband wanted to donate them to another infertile couple. The New Jersey Supreme Court first looked to whether any agreement existed between them. The court found no such agreement existed beyond the general IVF consent form, which simply stated: “all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances…dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues.”
Since there was no pre-existing agreement that indicated the parties’ true intent, the court turned to evaluating both parties’ interests. The court looked to public policy and ruled in favor of the wife, stating that her right not to procreate outweighed the husband’s preference to donate, especially since he could father children by other means.
This case set the precedent for New Jersey:
- The court will look to enforce embryo disposition agreements as long as they represent the parties’ intentions.
- Even if such an agreement exists, either party can reconsider and change their mind about the embryo disposition up until the point that the embryos are used or destroyed.
- If there is no agreement or there is disagreement over the disposition, the court will turn to balancing the parties’ interests.
J.B. v. M.B., 170 N.J. 9 (N.J.,2001)
Got a prenup with embryo clauses or embryo disposition agreement? Even better!
If you and your partner include embryo clauses in your prenup or get a standalone embryo disposition agreement, it gives the court a clear understanding of your intentions. Courts tend to respect these agreements because they are a direct reflection of both parties’ wishes. And while it’s true that people can change their minds about embryo disposition up until the embryos are implanted or destroyed, having a plan in place gives you a major advantage if a dispute arises.
Plus, drafting this clause is a great opportunity to have these tough discussions before diving into the fertility process. Making these major life decisions together while you’re both clear-minded can help ensure intentions and choices align. You can even build in flexibility by agreeing to review your choices periodically so both partners feel comfortable as the relationship and fertility treatments progress. This approach may help build trust and save you both so much time, money, and emotional stress in the long run if a dispute ever arises.
As you begin considering marriage, fertility treatment, and embryo disposition agreements, we highly recommend consulting an attorney who is an expert on this area of the law in your state so you can have the most up-to-date information as you make these important decisions.
The takeaway
In New Jersey, the legal default is to prioritize individual choice, meaning the court usually sides with the person who doesn’t want to procreate. A prenup with an embryo disposition clause or a standalone embryo disposition agreement can help avoid emotionally charged court battles and help make sure your intentions are honored. If you’re considering IVF or even just thinking about starting a family someday, it’s worth discussing this option with your partner. After all, planning for the “what ifs” today can bring peace of mind for tomorrow.
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
0 Comments