Okay, so you’re thinking about a prenup, which is smart! But maybe you’re wondering, “Embryo clauses? Do we really need to deal with that now? Can’t we just figure it out later if it comes up?” Trust me, we get it. It can feel a bit overwhelming to think about your future fertility when you’re in the midst of wedding planning. But here’s the thing: Tackling this now can save you a ton of money, heartache, and hassle down the road.
And it’s especially important if you already have embryos or frozen eggs/sperm in storage – you definitely don’t want to leave their fate up to the whims of a judge or your answers hastily provided on IVF clinic forms. Let’s discuss why adding embryo clauses to your prenup is a smart move – even if you don’t plan on conceiving via IVF.
What is an embryo disposition agreement?
First, there’s some terminology you should understand. An embryo disposition agreement is a contract you sign with your partner or spouse to determine what should happen to your embryos in certain situations, such as divorce, death, incapacitation, etc. Not only can you establish who maintains dispositional control of your embryos through an embryo disposition agreement, but you can also address who is and who is not a legal parent of any child(ren) born from the embryos after your separation or divorce.
Without this type of agreement addressing both dispositional control of your embryos and legal parentage of resulting children, your fertility clinic will require the consent of both parties for any decision relating to the embryos, whether transfer for purposes of conception, donation to another party, or discard.
The law on embryo disposition agreements in New York
New York is one of the few states that has enacted a statute explicitly permitting couples to enter into embryo disposition agreements. In the absence of legislation, disputes over embryos are playing out in divorce litigation, where judges are forced to grapple with the legal status of embryos. Luckily for New Yorkers (and anyone who can avail themselves of New York jurisdiction), the legal status of an embryo is fairly straightforward, at least as it pertains to embryo disposition agreements. Let’s break it down:
The statute (N.Y. Fam. Ct. Act § 581-306) sets forth the requirements for a valid embryo disposition agreement and what happens to frozen embryos if the parties divorce. New York law provides that an agreement is legally binding if:
- It’s in writing: Not just a casual conversation, but a formal, signed document.
- Both people had independent legal representation: Each party had the benefit of legal counsel in entering the agreement, even if one party paid for both lawyers.
- If you are married, the transfer of legal rights to embryos can only occur if you get divorced: If you are married, the transfer of legal rights to the embryos to one party can only become effective upon the parties’ divorce.
- Giving up rights means no parenthood: If you give up your rights to the embryos, you’re not legally the parent of any child born from them unless the agreement states that you consent to be a parent and you haven’t revoked that consent before embryo transfer.
- You can change your mind, but only before the embryo is transferred: If you intend to be a parent, and agree to be a parent in writing, you can revoke this agreement to be a parent if you do so in writing before any embryo transfer procedure with the embryo(s). Your revocation of agreement to be a parent means you won’t have any parental responsibilities for any resulting children, but the embryo transfer procedure may still occur, and the other party can still use the embryo(s) for purposes of family building per the terms of your embryo disposition agreement.
- Even imperfect agreements might count: If the agreement doesn’t meet all the rules above, a court might still enforce it if it’s fair to both parties. But the party that gave up their rights can’t be made a parent without their consent. In that case, the person who retained dispositional control of the embryo(s) would be the only legal parent.
Why you should consider putting your embryo disposition terms in your prenup
The purpose of the New York legislation is to shift the determination of who is a legal parent from marital status and genetic connection alone to intent and consent to be a parent when assisted reproduction is involved. As long as your embryo disposition is in writing and signed by each party with the benefit of independent legal counsel, you can and should address embryo disposition in your prenup.
Align future family planning goals with your future spouse
Even if you’re uncertain about your fertility or your family-building plans, it’s wise to address embryo disposition in your prenuptial agreement when you are in the mindset of planning a future with your partner. At the very least, you and your partner will be forced to broach important conversations around future children, marital expectations, and infertility before you say, “I do.”
Save time and money
If you don’t address embryos in your prenup now, you can always elect to do so at a later date. The downside is that you will have to pay lawyers (one for each of you) to draft an embryo disposition agreement after you have already paid lawyers to draft your prenuptial agreement. Including these terms in your prenup while you are already discussing how you will build a life together saves time and money. Best case scenario: you include these terms in your prenup and never need to think about them again.
Protect your wishes
If you have always known you wanted to be a parent, it’s essential that you add language to your prenup that is protective of your right to use embryos created with your partner. Likewise, it’s extremely important to address what happens to your embryos (discard or donate) if you feel strongly against your partner being able to use the embryos for his/her family building should you ever separate. Whatever your wishes are, you should protect yourself by including them in your prenuptial agreement.
What if I’m already married? (I.e., we can’t get a prenup)
If you are already married, you can’t get a prenup. However, you can absolutely still protect your future family planning options with an embryo disposition agreement or postnuptial agreement that includes embryo disposition clauses. You can contact an attorney experienced with the nuances of Assisted Reproductive Technology (ART) law in your jurisdiction in order to advise you in this process. It’s important to note that while certain principles remain consistent throughout the ART professional community, the specific laws of each jurisdiction vary.
What happens if you don’t have an embryo disposition agreement in a divorce?
In New York, if your agreement falls short of the statutory requirements for a valid embryo disposition agreement, N.Y. Fam. Ct. Act § 581-306 provides that a New York court may still consider whatever intentions you did reduce to writing, including forms completed at your fertility clinic. However, the New York court will still conduct a balancing of the interests test to determine what is fair based on the facts specific to your situation.
In the landmark New York case Kass v. Kass, 696 N.E.2d 174 (N.Y. App. Ct. 1998), the New York court took a straightforward contractual approach to resolve a dispute between a divorced couple fighting over the use of their frozen embryos. The ex-wife wanted to use the embryos to become pregnant, while the ex-husband opposed this. They had previously signed a consent form at their fertility clinic stating that in case of divorce, the embryos would be donated for research.
The court ultimately upheld the consent form, stating that it represented a binding agreement between the couple. They reasoned that even though circumstances had changed since the agreement was signed, the clear intent expressed in the consent form should be respected. The court noted that because embryo disposition is such an inherently personal topic, it should ideally be made by the couple themselves and not by a court.
The bottom line? Courts will look at whatever you have in writing first, and if there’s no enforceable writing in place, they may conduct a balancing of interests test to determine the best outcome.
When clinic forms clash with changing circumstances (real case example)
In 2018, a couple who had gone through IVF divorced and were arguing over the ownership of their last remaining embryo that they had created together. The case boiled down to what they signed in their consent form.
The form stated:
- That they consented to the use of the embryos for their “own use.”
- That either person could withdraw their consent to use the embryos at any time.
- This consent would remain valid until one of them revoked it in writing.
The husband later revoked his consent to use the embryo, meaning the embryo could not be used by the wife for implantation. The court ruled that the husband should be awarded the embryo solely for the purpose of having it disposed of in accordance with the original agreement with the fertility clinic.
The takeaway? If you don’t memorialize your intentions in a formal written agreement, you may be forced to abide by the terms of a consent form you hastily completed at your doctor’s office without giving the question the weight it deserves. Clinic forms don’t always reflect a party’s true intentions.
Finkelstein v. Finkelstein, 79 N.Y.S.3d 17 (2018)
The bottom line on why putting embryo clauses in your prenup matters
Whether you’re already navigating IVF or simply considering your future fertility and family-building options, addressing embryo disposition in your prenuptial agreement can save you from potential heartache and costly legal battles in the future. In today’s socio-political climate, leaving the fate of your embryos up to a judge is risky. Take control of your future family planning by having these important conversations with your partner now, and ensure your intentions are protected in a legally binding agreement.
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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