It may not be the first thought when you think of marriage and parenthood, but more and more couples are turning to artificial reproductive technology (ART) to help begin their families. In 2021, over 86,000 infants were conceived through ART, which includes in vitro fertilization (IVF).
As part of that process, many couples may create and freeze embryos, allowing them to have biological children. But what if life takes an unexpected turn? What happens to your embryos then? If you and your partner are exploring ART, do yourselves a favor and have these conversations now. Discuss and decide what happens to your embryos in a variety of scenarios.
If your heart drops just thinking about having these conversations, you’re not alone! This is an emotionally charged (and legally complex) conversation. But it’s not impossible, and doing some work now will allow you to move through the process a little more easily.
Here are some strategies for open, honest, and effective discussions.
Why embryo ownership matters
Now, it’s easy to put off conversations until you have to have them, so we’re going to help you avoid the avoidance. Understanding what is at stake will (hopefully) keep you and your partner motivated to have this conversation.
Embryo ownership refers to the legal rights and responsibilities of embryos created through ART (like IVF). The fate of these embryos can impact your family planning, emotional well-being, and legal standing. Let’s break down why it’s important to address this now:
- Emotional Considerations: These may not just be embryos to either of you. Embryos often hold significant emotional value to couples because they represent big things—parenthood, hopes for the future, or a legacy, for example.
- Legal Implications: The honest truth? The laws regarding embryo ownership are a hot mess. Okay, maybe hot mess is an exaggeration, but they are complex and vary widely by jurisdiction. The laws are changing, but having a clear agreement can help prevent potential legal disputes.
- Future Planning: What you decide can influence your family and reproductive choices. Being on the same page can allow you to make decisions more confidently.
Start the conversation early
We can’t stress this enough: Discuss ownership before beginning the IVF process. This ensures you’re both on the same page before you begin investing time, money, and, honestly, the mental load into the process. Making these huge life-altering decisions minutes before you walk into an ART procedure is a recipe for emotional and legal disaster. And if you’ve already begun the IVF process, don’t despair; just start now as soon as possible!
Do your research
Arm yourself with all the information you can. Knowing the data needed can help you dispel myths and misassumptions, highlight when and where you need help, and create a neutral starting place. These conversations will bring up different emotions. Research and data (study results, statistics) help provide an emotionally neutral starting point or help de-escalate an emotional one.
But where do you start the research? Don’t fret–use the following framework to begin your research:
- Legal Framework: Speak with a lawyer in your state who is an expert in embryo disposition. You can find an ART attorney in your state here. You can also do some Googling to start getting an idea of what the regulations are in your state.
- Medical Information: Understand the medical aspects of embryo creation, storage, and usage. Consult fertility specialists for detailed information.
- Ethical Considerations: Explore ethical perspectives on embryo ownership, such as the religious and moral viewpoints of others. Consider what you feel comfortable doing in the event you need to “get rid” of the embryos–donation to a couple, destruction, donation to research, or indefinitely storing them are your options.
- Financial Implications: Calculate the costs associated with embryo storage and management, and consider the financial impact on your future plans.
Talk about EVERYTHING
Leave no stone unturned. We realize that this can be overwhelming (especially if you’re already feeling a little anxious). However, brainstorming different scenarios will help you get on the same page. Here are some scenarios to talk about:
- What if you get divorced?
- What if you separate?
- What if one of you passes away?
- What if both of you pass away at the same time?
- What if one of you decides you don’t want children?
- What if you both decide you don’t want children?
- What if a family member or close friend can’t have a child and asks for an embryo?
- What if you can’t afford the embryo storage cost?
- What if one partner is unable to make a decision about the embryos?
- What if one of you wants to donate the embryos and the other doesn’t?
- What if you have remaining embryos (after a successful IVF procedure) and you don’t want any more kids?
- What if one or both of you want to donate embryos for research purposes?
- What if one or both of you want to donate embryos for conception?
- What if one or more of the embryos have something wrong with them?
How to be honest with your partner during these tough convos
This is not the time to hold back and hope these situations never arise. In the ever-changing landscape of fertility medicine, the more you can control, the less likely you’ll be affected by uncontrollable factors (ahem, laws). How can you be real and honest with your partner? Here are some tips:
- Working up to the hard stuff: Brainstorm that list of scenarios above and rank and order them together. Then, start with the “easiest” scenario to get the ball moving. Use these initial conversations to be honest with one another before diving into scenarios where you’re more divided.
- Practice honesty in other scenarios: Don’t limit yourselves to only these discussions. Build up your ability and tolerance for these conversations in your daily life. Pro Tip: These conversations are great for emotional connection, too! For example, try asking each other a question every day that allows for a more honest answer. Questions like, “When was the last time you cried?” or “Share one white lie you recently told.”
- Lead with your feelings: Lead with your feelings. Sharing how you feel can help your partner understand what you’re experiencing and where you’re coming from. For example, “I’m feeling really anxious about the future of our embryos and what it means for our family planning.”
- Overexplaining > underexplaining: Fall on the side of sharing more to help your partner understand your perspective. This doesn’t mean talking incessantly (listening is still an integral part). Try something like, “The idea of losing our embryos makes me feel like we’re losing a part of our potential family, which is why I’m so stuck about this issue.”
- Personal Beliefs: Reflect on your personal and shared values regarding parenthood, life, and reproductive ethics. Utilize “I” statements to help defuse an emotional conversation and other conflict resolution techniques.
Put it in writing
While the process is just as important as the product, you still want to walk out of these conversations with an agreement of your embryo ownership. Here are some tips on making sure your embryo disposition agreement is up to par:
- Embryo Disposition Agreement: You can put your terms about embryo disposition in a prenuptial agreement, postnuptial agreement, or an agreement specifically for embryo disposition.
- Specific Terms: Be as specific as possible–no ambiguous terms. Clearly outline the terms of embryo ownership, including custody, usage, and disposal. An ART lawyer or an online service like HelloPrenup can ensure your language is crystal clear.
- Contingency Plans: Include provisions for unforeseen circumstances, aka many of those scenarios you brainstormed and discussed. For example, include a clause in your prenup about what happens if either partner dies.
- Review Regularly: Revisit and update the agreement as needed to reflect any changes in your circumstances or views. Also, utilize trusted legal professionals to review it and provide amendments as needed.
@helloprenup What happens when the status of frozen embryos becomes the center significant debate? In Alabama, a 2024 court ruling declared embryos unborn children, raising the stakes for IVF clinics and patients across the state, and in many others. This case highlights the complex intersection of reproductive rights, personhood, and property laws. Want to learn more? Check out our podcast with reproductive rights attorney Janene Oleaga #FrozenEmbryos #ReproductiveRights #FamilyLaw #Prenups #IVF ♬ original sound – Prenuptial agreements
Seek support
Even if you and your partner agree, the topics you’ll cover are emotionally heavy. Prioritize your emotional health in this process. Here are some ways to seek out support in this process:
- Counseling: Consider couples counseling to navigate the emotional complexities of embryo ownership discussions. A therapist can also focus on conflict resolution, communication strategies, and mediation.
- Support Groups: Join support groups for couples undergoing ART to share experiences and gain support. Be with those (IRL or online) who can understand the experience and may be able to give you pearls of wisdom based on their own experiences.
- Individual Therapy: Individual therapy is beneficial, whether in conjunction with couples therapy or not. It provides you with your own personal space to process your experience and find personal clarity. Processing some of this individually can make couple therapy or a discussion about ownership go more smoothly.
- Balance your relationship: If possible, don’t let these conversations consume your time with your partner. Be sure to balance these conversations with time that is focused on you and your partner. If need be, schedule time together where any discussion about ART, embryos, or IVF is banned. Carving out that time for you both to be together without the stress will help refill your “gas tanks.”
Final thoughts
Deciding embryo ownership is a tough conversation for couples who are considering ART to begin or expand their family. Given this, it’s important to start these discussions early on, driven by thorough research and a clear understanding of legal, medical, and ethical considerations. Open and honest communication, grounded in sharing your feelings, values, and perspectives, can help reach a mutual agreement. The process is just as important as the endpoint, so don’t go straight to drafting an agreement. But do aim to walk out of this process with a comprehensive embryo disposition agreement, such as in a prenup.
As life and legal statutes shift, be sure to revisit your agreement to ensure both your interests continue to be protected. And, finally, remember–don’t do this alone! Pull resources for emotional support, such as counseling or support groups, to help you navigate the process. At the end of the day, a clear roadmap will help alleviate stress as you and your partner begin building your family.
Dr. Vivian Oberling is a licensed clinical psychologist with degrees from UCLA, Harvard, and Stanford. In her private telehealth practice, she works with adults navigating anxiety, identity shifts, and relationship dynamics—whether they’re dating, partnered, or parenting. She also provides executive coaching and behavioral health advisory support to tech startups and legal tools reshaping how we think about love, marriage, and psychological safety. Dr. Oberling combines 10+ years of clinical expertise with modern, real-world insight to help people move through uncertainty with clarity and connection.
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