Did you know that about 2% of births in the U.S. are thanks to IVF? In vitro fertilization (IVF) is a type of assisted reproductive technology (ART) where sperm and eggs are combined in a laboratory dish to help with fertilization. If fertilization is successful, the resulting embryos can be transferred into the uterus of a parent or gestational surrogate where they hopefully result in a pregnancy.
When couples begin the process of IVF, they hope to create a number of high-graded, viable embryos. A larger number of embryos translates to greater odds of having a child. But what happens to those embryos that aren’t used for embryo transfer? Sure, you can donate or discard the remaining embryos, but what if the intended parents disagree about what to do with their embryos? If the intended parents split up or die—where do those embryos go?
Enter: The embryo disposition agreement. An embryo disposition agreement is a document that outlines the future of unused embryos in certain scenarios. Let’s discuss what an embryo disposition agreement is, why it’s important, what it typically includes, and more.
Understanding embryo disposition agreements
An embryo disposition agreement is a contract between people who are creating cryopreserved embryos together with the intention of being parents. The agreement lays out what will happen to the embryos in the event of separation, divorce, or death and specifically addresses the future ownership and dispositional control of the embryos and parentage of any child born from the embryos. These agreements are necessary to prevent future disputes over embryos, including what happens if the parties split up and one party wants to have a child from the embryos and the other party wants the embryos destroyed. Embryo disposition agreements avoid legal disputes and provide clarity between intended parents to ensure both parties are on the same page at the outset of their family building.
People generally create embryo disposition agreements prior to or at the time of embryo freezing but can enter into embryo disposition agreements at any time. While the topic of an embryo disposition agreement is generally introduced at the time couples are completing forms at their IVF clinic, parties sometimes seek out an embryo disposition agreement as part of their family planning or estate planning. Some IVF clinics may even require embryo disposition agreements between the intended parents before moving forward with embryo creation through IVF.
Clinic forms vs. embryo disposition agreements
Let’s quickly talk about clinic forms and their relationship to embryo disposition agreements. Aren’t clinic forms enough to address what happens to your embryos? The short answer is no.
Sometimes, when you freeze embryos, your IVF clinic will require you to address what will happen to your embryos in varying scenarios as part of their consent forms. These forms may include questions about what should happen to the embryos upon separation, divorce, or death or should the embryos be left unclaimed for a specified period of time. The problem is that these forms are sometimes viewed as the agreement between the couple on the one hand and the clinic on the other. The couple completing the forms typically do not have legal counsel, and even if they do, they rarely, if ever, have separate legal counsel to advise them of their individual interests.
Embryo disposition agreements, on the other hand, require that each party have legal representation (in select states) when entering into a legal agreement among the parties as owners of the embryos. The clinic is not a party to the embryo disposition agreement.
It’s best practice to enter into your embryo disposition agreement before the completion of your IVF clinic form—or at least concurrent with the completion of your IVF clinic forms. You don’t want the answers you provide on your IVF clinic forms to directly contradict the terms of your embryo disposition agreement. If you complete these documents concurrently, you can ensure your intentions remain consistent and that you, your partner, and your clinic are all on the same page.
If you have already created embryos with your partner currently cryopreserved at your IVF clinic or in long-term storage, don’t panic. It’s not too late to enter into an embryo disposition agreement. If you get to the embryo disposition agreement after you’ve filled out the clinic forms, you can state that the embryo disposition agreement (and not your clinic forms) controls the ownership and future disposition of your embryos and the parentage of any resulting child. For example, if the embryo disposition agreement says that Parent A retains ownership of the embryos and the forms say Parent B retains ownership of the embryos, the embryo disposition’s terms would control, and Parent A would retain ownership of the embryos.
Quick note: Ownership and parentage are two different matters. Parentage of any resulting child can and should be addressed in addition to which party shall retain ownership and dispositional control of the embryos.
Why do you need an embryo disposition agreement?
Embryo disposition agreements provide clarity for intended parents and the clinic in addition to avoiding lengthy and expensive legal disputes down the road. Specifically, they address the often emotionally charged question of what will happen to frozen embryos in various life-altering scenarios, such as separation or death. Without an agreement, intended parents may leave the future disposition of their embryos to a court in the context of a complicated, expensive, and emotional legal battle with an ex-partner. There are countless heartbreaking stories in the news about individuals losing the ability to use their own embryos to have a child.
While the parties’ answers provided on their IVF clinic forms are sometimes enforced by a clinic or a court, in the absence of an embryo disposition agreement, intended parents can amend or revoke the decisions made in their clinic forms at any time. They may have completed these clinic forms minutes before undergoing a medical treatment without the ability and time to give their answers the weight deserving of such an impactful decision. One party’s promise to allow the other party to retain ownership of the embryos should they ever split up can be revoked with one phone call or email to the IVF clinic.
What goes into an embryo disposition agreement?
So, what goes into an embryo disposition agreement? It all depends on each intended parent’s unique situation, but there are some general terms that are often seen in most embryo disposition agreements:
What happens in the event of separation or divorce
If the intended parents are a couple (married or not), the embryo disposition agreement should address what would happen if the couple separates. This includes addressing the ownership and dispositional control of the embryos. Some common options include:
- One person takes ownership and dispositional control of all of the remaining embryos;
- The parties split ownership of the remaining embryos;
- The embryos are ethically destroyed;
- The embryos are donated to science, if possible;
- The embryos are donated to another couple for family building.
What happens in case of death or incapacity
Embryo disposition agreements should also address what happens to the embryos if one intended parent dies or becomes incapacitated. Will the surviving/non-incapacitated parent be able to move forward with their family building with the parties’ jointly owned embryos? Will the decedent/incapacitated party be able (and would they desire) to be declared a legal parent of any resulting child conceived posthumously? This can be an important decision for emotional reasons, but it can also impact social security benefits and inheritance.
Storage fees
The intended parents may want to include clauses about who is responsible for the costs of storage of the frozen embryos. Keeping the embryos frozen isn’t free, and each medical facility will have varying costs depending on a number of factors. People may choose to split the fees or have one person cover all the costs.
Putting embryo disposition clauses in a prenuptial agreement
If you’re at the start of your family building, the good news is that you can address what happens to your embryos by including embryo disposition clauses in your prenup. Of course, you can only do this if you are two intended parents who plan on getting married. If you are not planning on getting married (or are already married), then you should consider a standalone embryo disposition agreement.
The best news? You can actually include embryo disposition language in your prenup even if you haven’t started IVF yet and even if you’re unsure if you’ll ever need IVF! This is a great way to broach the topic of family-building expectations and ensure you and your spouse are aligned. If one of you feels strongly about never destroying embryos or about donating embryos to another couple, now is the time to address that topic and have larger conversations about your values. Managing expectations and memorializing intentions in a legal document can prevent heartache and disputes in the future.
Understanding state law variations
It’s crucial to understand what your state says about embryo disposition agreements. Most states do not have specific laws on this topic, but some states do. For example, in New York, there is a specific statute dedicated to embryo disposition agreements (N.Y. Fam. Ct. Act § 581-306), which states that these agreements must be in writing and each party must have independent legal advice in order to be enforceable.
On the other hand, some states may not uphold an embryo disposition agreement in some situations. For instance, in Arizona, there is a statute that requires the person who intends to achieve pregnancy with the embryo to retain ownership over the person who wants to destroy or donate. (Ariz. Rev. Stat. § 25-318.03). In Arizona, an embryo disposition agreement may not hold up if one party is seeking to achieve pregnancy with the embryos and the other is not.
What’s more—in some states, embryos may possess the same legal status as people, and you cannot contract around the rights of human beings. In these jurisdictions, an embryo disposition agreement is null and void at its inception.
The law is extremely variant depending on the state in which you reside and the state in which you are creating and storing your embryos. It’s crucial that you speak with an experienced fertility attorney in your jurisdiction who can advise you regarding the nuance of the legal status of embryos.
What happens if you don’t have an embryo disposition agreement?
If you don’t have an embryo disposition agreement in place, and you have a dispute over what should happen with your embryos, the future disposition and ownership of your embryos will be decided in court. The judge will apply any available state law, and if there is minimal precedent on the issue, they will decide the fate of your embryos on a case-by-case basis.
States have differing approaches to how they handle embryo disputes. Some states will honor contracts or clinic forms signed by the parties without further consideration. Other states will take a more analytical approach and will balance the interests of each party, maybe taking into consideration any forms or contracts signed by the parties. In a few states, judges will compel the parties to come to an agreement on the disposition of their embryos, leaving the status of the embryos in limbo until the parties can decide.
The bottom line on embryo disposition agreements
Embryo disposition agreements are essential for anyone pursuing fertility treatments with their spouse or partner. Addressing the future ownership and dispositional control of your embryos and the parentage of any resulting child in a legal document can best situate you and your partner in the face of anything life brings your way. Embryo disposition agreements also provide clarity for intended parents, setting expectations and protecting the rights of each party to become a parent or to not become a parent. Addressing your intentions in a legal agreement can avoid lengthy, expensive, and emotional legal battles in the future—whether you do so in a prenup or in an embryo disposition agreement. Embryo disposition clauses are available through HelloPrenup in select states, so you can start your future family planning today!
Janene Oleaga, Esq. (she/her) is a fertility lawyer and reproductive rights advocate assisting individuals and couples in all their family formation matters including prenuptial agreements, surrogacy arrangements, egg/sperm donation arrangements, embryo donation agreements, embryo disposition agreements, pre-birth and post-birth judgments of parentage, and adoption matters including confirmatory adoption and step parent or second parent adoptions. Janene founded Oleaga Law LLC from the premise that all individuals have the right to a family regardless of sexual orientation, gender identity, or relationship status. Janene is licensed in Maine, New York, and New Hampshire, with experience representing clients for intrastate arrangements, interstate arrangements, and international arrangements.
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