What happens to frozen embryos during a divorce?

On Behalf of | Jan 20, 2025 | Fertility Law |

Assisted reproductive technology has come a long way in the last few decades. Couples now have more options than ever before for growing their families. There are hormone treatments, surrogates and many other options for having children with medical support.

Regardless of what medical procedures the aspiring parents intend to undergo, the assisted reproductive process often begins with the creation of fertilized embryos using donor genetic materials or genetic materials harvested from the couple. Typically, couples continue using the embryos they have stored until they successfully have a child.

Occasionally, a marriage may suffer setbacks while there are still embryos in storage. What happens to stored embryos when intended parents divorce?

Parents have likely already set those terms

At the beginning of the assisted reproduction process, couples have to sign very thorough contracts with their health care providers. These contracts outline everything from liability in cases where there are storage failures to what happens if the couple divorces.

Most couples have to have an agreement in place regarding their embryos if they divorce before they cease receiving services. In some cases, couples agree to allow one spouse to retain the embryos to move forward with assisted reproduction on their own if they see fit.

Other times, the couple may agree to donate their remaining embryos to other couples who may want children to use or for scientific research purposes. They may also agree to the transfer and destruction of the embryos upon the dissolution of the marriage.

Each of these solutions has benefits and drawbacks. There are financial consequences to continuing to store embryos or to moving forward with assisted reproduction after the end of a marriage using the genetic materials of a former spouse.

Typically, the contract signed at the beginning of the process has clear provisions for what should happen when the marriage fails. Spouses preparing for divorce may need help reviewing the language in their contract with their fertility doctor or clinic to determine what may happen with their embryos and what, if any, burden that may impose on them as individuals.

Having support when pursuing assisted reproduction and when preparing for divorce can help people minimize the legal and financial challenges they’ll face during a difficult and highly personal situation that is divorce.