Are Frozen Embryos Discussed in a Divorce Case?

The Centers for Disease Control and Prevention (CDC) estimates that about seven percent of married women between 15 to 44 years old have difficulty getting pregnant after one year of trying. Approximately 12 percent of women in this age group have difficulty getting or staying pregnant. However, there are a range of treatments and procedures available to help overcome infertility. In vitro fertilization (IVF) is a procedure where an egg and sperm are manually combined in a lab, creating a fertilized embryo. The embryo is transferred to the uterus with the goal of achieving a viable pregnancy.

It is common to produce multiple embryos to increase the odds of pregnancy and to save for future procedures. While IVF has been successful in helping families experience the joy of pregnancy and parenting, it has also created a moral and legal dilemma for those who do not see eye to eye on what to do with frozen embryos.

Deciding who gets what property and assets in a divorce is challenging. Unlike a house or other marital property, a human embryo presents a unique challenge for the courts. Before undertaking IVF, couples should always make legal provisions should they change their mind about pursuing parenthood with stored embryos at a later date. There are many different scenarios that can happen when frozen embryos are involved in a divorce case.

What is IVF?

IIVF is a series of procedures used to help patients conceive a child. In IVF, mature eggs are retrieved from the ovaries and fertilized by sperm in a lab. That fertilized egg is now an embryo that can either be transferred to the uterus to achieve pregnancy or stored in a safe, controlled environment.

Couples pursue IVF for a variety of reasons:

  • Low sperm production.
  • Previous tubal sterilization.
  • Unexplained infertility.
  • Blocked or damaged fallopian tubes.
  • To prevent the passing on of certain genetic disorders.
  • To preserve fertility in patients with cancer or other conditions.

IVF success rates depend on many factors, including the age and overall health of both partners, the reason for the procedure, and the female’s previous reproductive history.

In the midst of fertility treatments, individuals are generally focused on a positive outcome. Chances are they are not thinking about the possibility of an ex-partner using frozen embryos without their consent. That raises questions about a person’s right to refuse another from using embryos they helped to create. What about the person who no longer wants to be a coparent with an ex-spouse? Most amicable couples should make plans for future embryos should they decide to part ways.

What are the Potential Outcomes for a Dispute Over Embryos?

In a dispute regarding the utilization of frozen embryos, the courts can take some possible approaches:

  • Give preference to the person who does not want parenthood.
  • Honor a pre-existing contract to either distribute the embryo to one party, another entity, or dispose of them.
  • Refuse to honor an existing contract to avoid violating one party’s right to refuse parenthood.
  • Honor an agreement to dispose of embryos while allowing either party to change their mind up until the time of destruction.

New Jersey Laws Regarding Custody of Frozen Embryos

Generally, New Jersey courts favor a person’s right to not become a parent against their wishes. One landmark case from New Jersey Supreme Court is a good example of this legal stance. The case involved a dispute over frozen embryos during a divorce. After experiencing infertility, the couple underwent IVF, implanting four embryos and preserving another seven for future use.

After having one child, the couple filed for divorce. While the wife wanted the additional frozen embryos disposed of, the husband wanted them donated to other couples with infertility. He argued the couple both agreed any unused embryos would be donated. Yet, their written agreement stated unused embryos would either be released back to the clinic or according to the court’s discretion.

Since there was no proof of an oral agreement and the written contract essentially deferred to the courts, the court ruled in favor of the wife who wanted the embryos destroyed. The courts acknowledged the lack of precedents regarding reproductive technologies and stated that since they are both contributors to the embryos, that the decision should be theirs to make.

Despite the father’s argument that the disposing of the embryos would be a violation of his constitutional right to procreate, the courts determined the mother’s right not to parent outweighed the father’s wish to have the embryos be brought to term. The person wishing not to procreate should prevail as long as the other party has a reasonable possibility of achieving parenthood using other means. In the case, the father was not infertile and could potentially reproduce in the future. The ruling might have been different if he was infertile.

Legal Protections Against Involuntary Parenthood

It is clear litigation regarding the use of frozen embryos is fairly uncharted territory. That is why any individual pursuing IVF should take proper legal steps to protect their interests and make their wishes known.

Generally, IVF clinics require couples to sign an agreement confirming their wishes for the future of embryos in the event of separation, divorce, and death. The options usually include giving them to one parent, donating them to infertile couples, donating them to science, or destroying them. While the courts generally honor these agreements, legal battles may ensue if one party has changed their mind.

Landmark Case

In Arizona, another landmark case had a different outcome. A lawyer was diagnosed with cancer and needed a double mastectomy, radiation, and chemotherapy after learning cancer treatments likely impacted her fertility. The lawyer and her then boyfriend pursued IVF. As a result, seven healthy embryos were created and frozen.

The lawyer completed cancer treatment and married her boyfriend, but they divorced after two years. Her ex-spouse asked for custody of the embryos and wanted to donate them to another couple. The case reached the Arizona Supreme Court.

After conflicting stances between courts, it was ruled that the contract that was signed at the IVF clinic should be followed. The contract that the couple signed was to donate any unused embryos. Arizona state legislature got involved in the case, creating one of the most far-reaching laws of its kind, which is known as the Embryo Statute, the law requires judges in Arizona to award frozen embryos to the individual who is best able to give them the chance to develop to birth. The law is especially important because it declares the decision to reproduce occurs at the time embryos are created.

Embryonic Disposition Agreements

An embryonic disposition agreement is a useful tool to help ensure both parties’ wishes are upheld should they divorce, become incapacitated, or just change their mind. Along with a prenuptial agreement and postnuptial agreement, an agreement regarding cryopreserved embryos is an essential layer of protection against the changes and events that are hard to predict.

At any time during the marriage, either party should consult a lawyer if they want to make changes to agreements or contracts regarding frozen embryos. The same is true for divorcing couples who cannot agree about how to use stored embryos.

Morristown Divorce Lawyers at Lyons & Associates, P.C. Protect the Interests of Divorcing Clients Going Through Infertility Treatments

Much like newlyweds do not think much about the prospect of divorce, couples undergoing IVF and other fertility treatments probably are not thinking about what happens to their frozen embryos should they divorce. However, it is an important consideration. The Morristown divorce lawyers at Lyons & Associates, P.C. offer clients legal guidance during divorce, and we can advise you on how to proceed with frozen embryos. Call us at 908-575-9777 or contact us online for an initial consultation. Located in Morristown and Somerville, New Jersey, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.