Divorce is never easy, but when frozen embryos are involved, it gets even more complicated. “Embryo disposition” is the legal term used to refer to what happens to the genetic material known as “embryos” when a couple separates, also sometimes referred to as “embryo custody.” So, what happens if a couple undergoes IVF, creates several viable embryos, gets divorced, and can’t agree on what should happen to the embryos? What if they filled out forms with their clinic before they started IVF regarding embryo disposition, but one partner has changed their mind? They will need to address the disposition of the embryos in their divorce settlement. But how, you ask? Well, it’s complicated, to say the least, with outcomes varying depending on state laws and prior agreements.
What does “embryo disposition” really mean?
Technically, “embryo disposition” is the legal term used for defining both the ownership of the genetic material known as an embryo (the combination of egg + sperm that creates a viable embryo that has the potential for life once implanted into a person) and what will happen to that genetic material after a divorce. There are many options for what to do with frozen embryos after separation or divorce, including one party retaining all embryos, destruction, donation for medical research, or to an embryo bank or third-party recipient, or dividing the embryos between the parties (if there is more than one remaining).
How state laws differ on embyro disposition
There is no federal family law, so what makes embryo disposition such a tricky issue is that state law differs wildly on how to handle disagreements between divorcing spouses regarding frozen embryos. State courts take one of four general approaches when they are tasked with deciding an embryo disposition case.
Some states utilize “embryo personhood” laws
As seen in the news lately, there are some embryo personhood states, like Louisiana, Arizona, and Alabama, that define an embryo as a person with legal rights even before it is implanted. In these states, you are unlikely to be able to destroy leftover frozen embryos, and it is unclear whether a couple can create a contract regarding embryo disposition at all. The person in the divorcing couple who wants to have children with the embryos often prevails.
Other legal approaches to embryo disposition
The other three legal approaches do not start with the premise that a frozen embryo is a human life. These approaches consider that embryos are either property or “quasi-property,” a special category for things that have some of the same functions as property but are inherently different. These three approaches are as follows:
Contractual approach
This approach takes the position that IVF clinic forms a couple entered into at the time of a fertility procedure are enforceable as long as they do not violate public policy. This approach is the most hands-off a court can take because it essentially means that the court will not impose its own reasoning on the couple’s decision and that the choices they selected regarding disposition in the case of divorce (like destruction or donation to medical research, for instance) shall govern. New York and California tend to follow this approach, though the case law is still developing.
Mutual consent approach
This approach suggests that contracts can reveal intent at the time of the IVF procedure, but couples often divorce many years after the IVF procedure is completed. If there is no “contemporaneous mutual consent” between the parties at the time of divorce, this approach prevents either party from using, donating, or destroying material until a new, contemporaneous agreement is made. This approach has been used in cases in Iowa and New Jersey, among others.
Balancing approach
This approach essentially disregards the IVF clinic forms, even if the intent expressed in the clinic forms is not ambiguous. Under this approach, courts are directed to balance a party’s right to procreate vs. the other party’s right not to procreate. This approach has been used in Illinois, Pennsylvania, Tennessee, Colorado, and Massachusetts.
How to address embryo custody (i.e., disposition) in divorce settlements
First off, what is a divorce settlement? A divorce settlement is an agreement that divorcing couples enter into to put into writing all of their agreements upon settling the divorce. This can include property division, alimony, child custody, child support, etc. So, this begs the question: how do you address embryo disposition in a divorce settlement? The parties’ attorneys will need to have their clients agree on what to do with the embryos. If the clients cannot agree, then they will need to get a mediator or a judge involved, which can lead to lengthy litigation over the disposition of the embryos.
There are only a handful of ways you can address embryo custody (i.e., disposition) in a divorce settlement:
- Agree to give complete ownership to one spouse to do whatever they want with the embryos (use for conception, destroy, donate, etc.)
- Agree to divide the embryos between the parties if there is more than one remaining (though this may create thorny parentage issues)
- Agree to donate the embryos to research
- Agree to donate the embryos to another couple or an embryo bank for conception
- Agree to destroy and/or discard the embryos
- Agree to keep the embryos in storage indefinitely
- Agree to address the issue at another time
One (or multiple, as potential back-ups) of the above options will be written into the divorce settlement and agreed to by the parties.
Real cases addressing embryo custody in divorce settlements
Let’s dive into some real case law demonstrating how real courts address the issue of embryo disposition disputes in divorce settlements. The examples below are real couples in real divorces arguing over what to do with unused embryos and what happens when they cannot decide on what to put in their divorce settlements.
Kass v. Kass (New York, 1998)
The court, in this case, took a pure contractual approach to tackle this pivotal New York case in which a divorcing couple was arguing whether the ex-wife should be allowed to use their embryos to get pregnant, while the ex-husband was against it. They had signed a consent form at the fertility clinic that stated the embryos would go to the clinic for research if they divorced.
The court’s decision? Using the contractual approach to solve the issue, the court respected the written agreement between the couple and ruled that the clinic form was binding, despite the fact that circumstances had changed in the intervening years. The court denied the ex-wife’s request to use the embryos for pregnancy, highlighting the clear intent of their original agreement outlined in the consent form.
The court explained that such personal decisions should be made by the individuals involved, not by courts, so they upheld the consent form the couple had signed. Kass v. Kass, 696 N.E.2d 174 (N.Y. App. Ct. 1998)
J.B. v. M.B. (New Jersey, 2001)
J.B. (wife) wanted to discard the remaining pre-embryos, but M.B. disagreed and wanted to donate to an infertile couple or be used by his soon-to-be ex-wife. Before undergoing the IVF procedure years prior, the couple signed a fertility clinic consent form, which stated that they would relinquish their embryos to the clinic in the event they divorced unless otherwise ordered by a court.
The court’s decision? The court stated that this consent form did “not manifest a clear intent by J.B. and M.B. regarding the disposition of the pre-embryos in the event of a divorce.” The court concluded that the form’s inconsistent language (donate the embryos to a clinic unless a court order directs otherwise) did not manifest the parties’ intent at the time; it punted the decision to a future court order. So, the court ruled that the clinic consent forms were not enforceable.
Balancing of the right to procreate versus the right not to procreate
The court then turned to an analysis of M.B.’s right to procreate versus J.B.’s right NOT to procreate. The court declared that M.B. could still have more children even if he isn’t allowed to use or donate the pre-embryos. The court reasoned that he is already a father and can become a father again, either naturally or through additional fertility treatment. On the other hand, if J.B. is forced to use or donate the pre-embryos, this would violate her right not to have more children. If the pre-embryos were implanted and resulted in a birth, it would mean she has another biological child, which could have lasting emotional and psychological effects on her. J.B. v. M.B., 783 A.2d 707 (2001)
In re Marriage of Rooks (Colorado, 2018)
In the case of Mandy and Drake Rooks, they signed an agreement with the fertility clinic that did not specify what should happen to the embryos if they divorced. The dispute arose because Mandy wanted to use the embryos to become pregnant, while Drake wanted them discarded.
The court’s decision? The court explained that it should first look for any agreement between the spouses. If none exists, the court must then balance factors like each spouse’s intended use of the embryos, their ability to have biological children by other means, their reasons for undergoing IVF, the hardship of becoming a genetic parent, any bad faith in using the embryos as leverage, and other relevant considerations. A court specified that it should NOT use factors such as whether the people can afford a child, the number of existing children, or whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child.
In this case, the Rooks’ agreement did not clearly resolve what should happen to the embryos, so the court must balance their interests. This court did not decide what should happen but instead remanded the case to the trial court to apply the instructions on how to properly balance a party’s interests.
How a prenup can help with embryo disposition disputes
Wondering how to avoid all of the litigation and emotional turmoil that is evident in the cases above? Put your intentions for embryo disposition in writing in something other than a fertility clinic consent form. As you can see from the cases above, consent form language can be ambiguous and ultimately unenforceable.
The better route is to put your desires into a separate written agreement that lays out what should happen in every scenario, including what happens if you separate or divorce. One way to achieve an enforceable agreement regarding embryo disposition is to put your wishes in a prenuptial agreement, even if you aren’t sure that you’ll undergo IVF treatments. Making these choices in a prenuptial agreement when you can benefit from the advice of an attorney and thoughtful consideration, rather than hastily filling out a fertility consent form.
The bottom line? If you’re getting married, even if you don’t know if you’ll undergo fertility treatment, it is worth it to create a prenuptial agreement so you can control what happens to your genetic material if you divorce, and these important life decisions are not left up to an ever-changing legal landscape and the whims of a judge.
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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