Assisted reproductive technology (ART) is revolutionizing how we build families, with IVF now accounting for a significant portion (2.3%) of births each year. Yet, this modern miracle comes with complex legal questions, especially when couples part ways. What happens to those embryos created with so much hope and intention that are still frozen after a couple decides to divorce? Do the consent forms (quickly scanned and signed minutes before the procedure) dictate their fate? This article delves into the question of whether patients are actually able to give informed consent when they fill out these IVF clinic forms and whether these forms ultimately dictate what may happen to frozen embryos when a couple divorces.
What is informed consent?
Picture this: You walk into a doctor’s office for an IVF procedure. The receptionist hands you a clipboard with a bunch of paperwork, all of which looks like boilerplate forms. You’re nervous about the procedure, so you keep checking your phone and the time. You skim through the paperwork, checking off different boxes quickly to get through it so you can focus on breathing. There is so much at stake.
This is where the legal concept of informed consent comes in. Informed consent is the process in which a health care provider, like a reproductive endocrinologist in the case of IVF, educates a patient about the risks, benefits, and alternatives of a given procedure or intervention. The patient must be competent to make a voluntary decision about whether to undergo the procedure or intervention. Legally speaking, if a patient has not given informed consent, the procedure should not move forward.
The paperwork involved in informed consent
The paperwork patients are asked to fill out and sign before fertility treatments is meant to present the potential risks, benefits, and challenges of a procedure and memorialize a patient’s full understanding (i.e., informed consent). In addition to laying out medical and psychological risks and benefits, these forms can include the clinic laying out its policies regarding scenarios like missed payments and a breakdown in communication between the patients and the clinic. For instance, the form might present a statement where the couple acknowledges that failure to pay storage fees could result in the clinic destroying their embryos. The forms may also ask the patients to address what they would like to happen with any frozen embryos upon the death of one or both individuals or in the case of a divorce (you see where this is going now, right?).
Patients are often presented with a check box that says something along the lines of:
In the event that the patient and their partner separate or divorce… they agree that the embryos should be
[ ] destroyed
[ ] donated or
[ ] given to one of the parties.
The couple checks off their choice and moves on. There are no attorneys involved, no legal advice, and hardly any time to think through these decisions. Patients often sign off that they have understood the implications of their selections on these forms, but if they filled the paperwork out in five minutes, rushed through the forms without much consideration, and could not seek the advice of an attorney at the time, do these clinic forms really indicate that patients have given informed consent?
Cases that upheld clinic consent forms
Kass v. Kass, 696 N.E.2d 174 (N.Y. App. Ct. 1998)
In Kass v. Kass, a New York Appellate Court demonstrated the unique legal problem with consent forms. The case went as follows. A divorcing couple was in a dispute over what to do with their unused, viable embryos. The ex-wife wanted to use them to conceive, while the ex-husband did not want her to use them.
The clinic form: Before undergoing a procedure to freeze embryos, the couple signed forms that outlined what would happen to the embryos in different situations. The forms stated that the embryos would be stored for up to 5 years and required the couple’s written consent for any use or disposal. The forms also stated that in the event of a divorce, legal ownership of the embryos would be determined in a property settlement and that if the couple no longer wanted to use the embryos, they could choose to have them used for research.
The court’s decision: Ultimately, this New York court said the informed consent form was enforceable, and since they could not reach an agreement in a property settlement, they would need to donate to research. The court denied the ex-wife’s request to conceive with the embryos.
Impact: As you can see, the ex-wife in the case above either changed her mind or did not realize what she was signing off on, or both (demonstrating the problem with these forms in the first place). In this case, she argued this was her only chance to become a genetic mother and desperately wanted to use the embryos for her own chance at conception. However, the court emphasized the importance of enforcing general rules of contract interpretation and placed a lot of legal weight on the fact that the ex-spouses had agreed on disposition terms in the clinic forms. In other words, the court prioritized the prior “meeting of the minds” of the ex-spouses over their current circumstances or either party’s desire or non-desire to have children.
It’s not just New York courts that tend to uphold these clinic forms. There are many examples of cases involving similar facts in states around the country where courts have ruled that the forms are enforceable, including Findley v. Lee in California (2016), Roman v. Roman in Texas (2006), and Litowitz v. Litowitz in Washington (2002), among many others.
Cases that did not uphold the consent forms
J.B. v. M.B., 783 A.2d 707 (2001)
Very close in time to Kass v. Kass, just over the Hudson River, a 2001 New Jersey case presented very similar facts. A husband and wife who had undergone IVF and had a child disagreed on what to do with their remaining embryos after separating. The wife wanted to discard them, while the husband wanted to donate or use them.
The clinic form: The couple had previously signed a fertility clinic form. The form detailed the IVF process, including the creation and freezing of extra embryos. It stated that control of these embryos belongs to the patient and her partner, who must sign a separate legal agreement attached to the consent regarding their disposition. The agreement specified that control of the embryos will be given to the IVF program if the couple divorces, unless a court decides otherwise.
The court’s decision: The court found the form ambiguous, as it both gave the clinic control and allowed for a court order to change that. Therefore, the court declared that there was no binding agreement on what to do with the embryos. In other words, the form was not enforceable in this case. Instead, the court weighed each person’s right to procreate or not procreate. It ruled in favor of the wife and reasoned that the husband had other ways to become a parent, and forcing the wife to use the embryos would infringe on her right not to become a parent.
Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. 2013)
A couple in a year-long relationship faced a difficult situation when the woman was diagnosed with non-Hodgkin’s Lymphoma, potentially impacting her fertility. To preserve the possibility of having children, she asked her then-boyfriend to donate sperm for embryo creation, and he agreed. The following day, they visited a fertility clinic and signed a consent form stating the embryos were their joint property and couldn’t be used without both partners’ consent. Unfortunately, their relationship ended less than a year later, leading the man to sue his ex-girlfriend to stop her from using the embryos.
The clinic form: In this case, the clinic form that they filled out stated:
“Embryos are understood to be your property, with rights of survivorship. No use can be made of these embryos without the consent of both partners (if applicable).”
The court’s decision: The court ruled in favor of the girlfriend, permitting her to use the embryos despite the terms of the clinic form. Their decision hinged on a verbal agreement made between the couple prior to signing any documents, in which the man agreed to donate his sperm for potential conception. Although the subsequent written consent form stated both parties needed to agree on embryo usage, it also acknowledged that any prior agreements between the couple would take precedence. In this case, the verbal agreement was considered binding, overriding the terms of the written consent form.
What can you learn from all of the above cases? It won’t come as a surprise that courts all over the country have found that clinic forms are not enforceable for various reasons, including ambiguity or valuing a party’s right to procreate (or not procreate) over the terms of a previously signed clinic form. These cases include Reber v. Reiss in Pennsylvania (2012), A.Z. v. B.Z. in Massachusetts (2000), and Davis v. Davis in Tennessee (1992), among many others.
A potential resolution to the challenges of IVF clinic forms
The enforceability of these forms for the disposition of embryos is uncertain, and they may not always accurately reflect a couple’s intentions. So, how do we address this dilemma?
One solution is to incorporate embryo disposition decisions into a prenuptial agreement. This allows couples to thoughtfully consider their wishes before the need for IVF even arises, in a calm environment, when everyone still gets along, and with legal guidance if desired. Putting embryo disposition decisions in a prenup can lead to an informed and deliberate decision compared to hastily signing forms at a clinic that may give rise to litigation later on if you go through a divorce.
If it is too late for a prenup (i.e., you’re already married), don’t fret. You can still create a solid agreement, such as a postnuptial agreement or an embryo disposition agreement, to make sure your intentions are reflected.
The bottom line on informed consent during IVF
As you can see from the real cases above, courts are all over the map in how they interpret clinic forms, making these forms unreliable tools for determining the fate of your embryos. Sometimes they’re enforced, sometimes they’re not. Even if they are enforced, they may not reflect each person’s true intentions for their embryos. A good resolution to this conundrum is to agree to embryo disposition in a prenup long before undergoing IVF. This creates a better environment for thorough decision-making and better legal processes (such as legal advice, notarization, etc.). And if you’re already married, don’t worry; you can always look into a postnup or embryo disposition agreement to outline your wishes.
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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