What happens to frozen embryos in a divorce?

| Jun 25, 2020 | Firm News |

Freezing embryos for future in-vitro fertilization (IVF) can be a blessing for couples facing health issues that put their fertility at risk. However, during divorce, these embryos can be cause for additional conflict. Embryo custody is still a developing area of the law. For couples who have frozen embryos or intend to freeze their embryos, it can be essential to get legal guidance to prepare for these future issues.

Is there a clinic agreement in place?

Because we cannot be confident in what will occur in the future, many reproductive clinics have forms and agreements that address divorce and other issues like non-payment of storage fees. These agreements may allow one spouse to gain custody of the embryo, provide for the donation of the embryo or other provisions.

In 2015, California courts decided the state’s first embryo dispute based on the couple’s agreement with the fertility clinic. The court determined that the clinic’s consent and agreement form was an enforceable contract and that neither party could use the frozen embryos. The same may be true in your case.

Can you prepare for embryo disputes?

Couples that intend to freeze their embryos may want to consider future concerns before working with a fertility clinic. One option to consider is drafting a prenuptial agreement to address what will happen to your embryos if your marriage ends before you implant these embryos. By making these decisions ahead of time, you can prevent a difficult battle during property division.

If you do not have a prenuptial agreement or clinic agreement, it is essential to speak to an attorney with experience in embryo disputes and other reproductive law concerns. They can help you build a legal strategy that protects your interests.