The use of IVF has revolutionized family planning but also introduced complex legal dilemmas, particularly concerning the fate of frozen embryos after divorce or separation. In this article, we examine four important embryo disposition cases that have shaped the legal landscape of embryo disposition, revealing the diverse approaches courts have taken in resolving these disputes. These cases highlight the importance of clear agreements, the need for comprehensive legal frameworks, and the challenges faced by both couples and the legal system in navigating the evolving world of reproductive technology. Let’s dive in.
Case #1: Terrell v. Torres (Arizona)
In 2020, an Arizona court delivered a controversial ruling in the case of Terrell v. Torres, highlighting the complexities and potential unexpected outcomes in disputes over the disposition of embryos. The case involved a divorced couple who were at odds over what should happen to their frozen embryos.
Case details:
The couple had undergone IVF with her future husband because the ex-wife had cancer and wanted to preserve her ability to have children in the future. After their divorce, the ex-wife wished to keep the embryos for her own potential pregnancy, while the ex-husband wanted the embryos to be donated to a third party.
Court ruling:
The court ultimately ruled that the embryos should be donated to a third party, despite the ex-wife’s strong desire to use them herself. This decision was grounded in the terms of their fertility clinic form, which essentially stated that if the parties could not agree on the disposition of the embryos, they would be donated to another couple.
Contractual ambiguity:
The fertility clinic form lacked clarity and specificity, stating only that both parties needed to agree on the fate of the embryos if one party wanted to use them for conception or they would be donated to another unknown couple. Since the couple could not reach an agreement for the ex-wife to use them, the court adhered to the contract’s default provision, leading to the donation of the embryos despite the ex-wife’s objections.
Conclusion:
The ruling in Terrell v. Torres serves as a cautionary tale about the importance of having clear and detailed agreements regarding the disposition of embryos. A more precise agreement, such as in a prenuptial agreement, between the couple could have potentially prevented such an unforeseen and distressing outcome for the ex-wife. This case underscores the need for clear communication and comprehensive legal agreements in matters of reproductive technology and embryo disposition.
Terrell v. Torres, 248 Ariz. 47 (AZ 2020)
Case #2: Findley v. Lee (California)
In the 2016 California case of Findley v. Lee, the court faced a complex dispute involving a divorced couple and the fate of their frozen embryos. Similar to the Arizona case of Terrell v. Torres, this case arose after a woman was diagnosed with cancer and underwent IVF with her husband…then later divorced. The ex-husband objected to her use of the embryos for conception, believing she had ulterior motives and simply did not want to co-parent with her. The core issue centered on the consent forms they signed at the fertility clinic, which dictated the disposition of the embryos in the event of divorce.
Case details:
This couple met at Harvard during undergrad. The wife eventually went on to be a doctor, and the husband went into finance. Several years later, they got engaged. Right before the wedding, the wife was diagnosed with cancer, and in order to preserve her chances of a biological child, the couple underwent IVF. At the fertility clinic, the couple signed off on consent forms pursuant to California Health and Safety Code Section 125315, which required the couple to agree on what to do with the embryos in the event of a divorce, among other scenarios.
The couple selected to thaw and discard in the event of divorce. However, the wife mentioned speeding through the document, not understanding the gravity of what she was signing.
Just a few years later, the couple got a divorce before they had a chance to conceive. The (now ex) wife wanted to use the embryos to conceive biological children, and the ex-husband objected because he believed she wanted to extort him for money through having a child and did not want to co-parent with her.
Court ruling:
Ultimately, the court sided with the husband. The court relied on contract principles to come to this decision. The court explained that the forms they signed at the fertility clinic were intended by the California legislature to be an enforceable agreement between the couple.
However, the court also conducted the analysis for a balancing of interests approach. This test includes balancing the wife’s right to have a biological child versus the husband’s right not to be compelled into parenthood. The court noted that they arrived at the same outcome for both approaches.
The court explained that the following factors weighed in the husband’s favor:
- The wife could’ve preserved her own fertility after the divorce, but chose not to.
- The wife couldn’t establish that she was actually infertile and, therefore, unable to procreate now.
- The court found that the wife was not credible in her testimony, with contradictory statements, whereas the husband was found to be credible.
- The husband’s concerns regarding co-parenting with her were valid because of some comments she made during her testimony.
Conclusion:
The ruling Findley v. Lee demonstrates the importance of clear and concise embryo disposition clauses in prenup and/or separate agreements. If something is in writing regarding what to do with embryos, it’s likely to be upheld. If there is nothing in writing, then a balancing test of the parties’ interests to use the embryos will likely be applied. Let Findley v. Lee serve as a reminder that if you sign off on fertility clinic forms with no other agreements in place, it’s likely that the court will uphold whatever you sign there. Even if you hastily checked off boxes without truly understanding what you were deciding or giving it much thought.
Findley v. Lee, No. FDI-13-780539, 2016 WL 270083 (Cal. Super. Jan. 11, 2016)
Case #3: Szafranski v. Dunston (Illinois)
This case has very similar facts to Findley v. Lee and Terrell v. Torres above but with a starkly different outcome. The court here utilized a two-part test, first analyzing any agreement between the couple and second balancing out their interests in using the embryos.
Case details:
A boyfriend and girlfriend were dating for about a year before the girlfriend was sadly diagnosed with non-Hodgkin’s Lymphoma. With the girlfriend facing infertility from future chemotherapy treatments, she asked her boyfriend to donate his sperm to create embryos, and he agreed. The next day, they went to the fertility clinic to get treatment started and signed an Informed Consent document that 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).”
They ended up breaking up less than a year later, and the boyfriend sued his ex to prevent her from using the embryos to achieve pregnancy.
Court ruling:
The court ultimately sided with the girlfriend and allowed her to use her embryos for conception. The court relied on an oral agreement between the couple in which the boyfriend verbally agreed to donate his sperm for the potential use of conception. Even though he signed an Informed Consent form the next day that stated consent of both parties is required to use the embryos, the Informed Consent document also stated that any agreement between the parties will control. Here, the parties did have an agreement—a verbal one.
In the alternative, even if there wasn’t an enforceable oral agreement, the court still sided with the girlfriend because the balancing of interests test weighed in her favor. These embryos were the only chance she had of having biological children. This was compared to the boyfriend’s argument that he shouldn’t be forced to procreate with someone he doesn’t love, and it could damage his future love interests to have fathered a child in this manner. The court said that the girlfriend’s interests prevail here.
Contract language:
The relevant portion of the informed consent form that the couple signed off on at the fertility clinic stated the following: “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).” However, the court did not find this language to be contradictory because the contract also stated that any agreement between the parties would control.
In addition, the court found that an “Informed Consent” form was not equivalent to a dispositional agreement of what to do with the embryos. The Informed Consent form simply prevents the fertility clinic from disposing of the embryos in any manner without the parties’ consent.
Conclusion:
Here, a verbal agreement was found to be enough to be an enforceable embryo disposition agreement. Lesson to be learned? Verbally agreeing to donate sperm may be enough to solidify a person’s right to use the created embryos for conception one day. However, it’s not advised to rely on oral agreements. Putting something in writing, such as in a prenuptial agreement, is always best practice.
Szafranski v. Dunston, 2015 IL App (1st) 122975-B, ¶ 89, 34 N.E.3d 1132, 1153
Case #4: Reber v. Reiss (Pennsylvania)
This case is similar to the outcome determined in the IL Szafranski above–the court had to decide what to do with embryos between a divorcing couple–one who wanted the embryos destroyed and one who wanted to use them for conception. The court found that there was no relevant agreement in this case and thus relied on a balancing of interests test.
Case details:
Husband and Wife were married, and shortly thereafter, the wife was diagnosed with breast cancer at around age 36, leading them to undergo IVF to preserve her ability to conceive. After IVF, Wife endured extensive cancer treatments, including surgeries, chemotherapy, and radiation, leaving her uncertain about her ability to conceive naturally. Eventually, they divorced without getting a chance to conceive with the embryos.
Husband ended up having a child with another woman 18 months after separating from his ex. Wife, now aged 44, sought to use them for implantation, considering them her only chance to have biological children, while Husband wanted them destroyed to avoid further parental responsibilities.
Court ruling:
In this case, the court carefully weighed the interests of both parties and ultimately ruled in favor of the wife. They determined that her strong desire for genetic parenthood through the use of the embryos outweighed the husband’s concerns about fatherhood and involuntary procreation. The court emphasized that using the embryos was likely the wife’s only opportunity to have biological children, while the husband’s concerns were lessened by the wife’s willingness to involve him in the child’s life.
Conclusion:
The court balanced the two opposing parties’ interests and sided with the party that wanted to use the embryos to achieve pregnancy. Why? This court said the wife had no other means of genetic parenthood, and the husband’s concerns of not being included in the potential children’s lives were alleviated by the wife’s willingness to involve him.
Reber v. Reiss, 2012 PA Super 86, 42 A.3d 1131 (2012)
The bottom line
In conclusion, the four cases above offer a glimpse into the complex and emotionally charged decisions surrounding embryo disposition. When faced with disputes, courts typically seek a pre-existing agreement between the parties. In the absence of such an agreement, they resort to a balancing of interests test, weighing the desires of one party to use the embryos against the other’s wishes not to.
The key takeaway is that there is a dire need for clear and concise agreements on what couples want to do with their embryos. Simply signing consent forms at a fertility clinic might not be sufficient. While verbal agreements might hold up in court, relying on them is not the most prudent approach.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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