We’re Getting Divorced – What Happens to Our Frozen Embryos?

Paule, Camazine & Blumenthal, P.C. posted in From the Lawyer’s Desk on Tuesday, June 02, 2015.

By Tim Schlesinger

You’ve been through in vitro fertilization (IVF) and you still have frozen embryos. You and your soon-to-be ex-spouse contributed the eggs and the sperm to create these embryos. You might already have children from this group of embryos, or maybe the embryo implantation was unsuccessful, and you don’t have children. At the time, all you were thinking about was having children, trying to build a family. Now, you and your spouse are divorcing. What happens to the embryos that remain? This is a question that raises a hornet’s nest of emotional, religious, ethical, financial and legal issues. (If you are wondering, the legal issues are no different if an unmarried couple breaks up and has frozen embryos, as in the case with Sofia Vergara and Nick Loeb).

When you began the IVF process, the fertility clinic had you sign consent forms. There were many medical consent forms that were given to you at the time; maybe you read them, maybe you didn’t. You didn’t have a lawyer look at them before you signed them, because you were at the doctor’s office when they were given to you. One of the consent forms was probably called “Directive Regarding Disposition of Embryos” or “Consent Regarding Cryopreserved Embryos,” or something similar. That form had choices. One of the choices was that your spouse gets to decide what happens to the embryos in the event of a divorce. Another choice was that you get to decide. There might have been a third choice that provided both of you have to agree, in the future, what happens to the embryos in the event of a divorce.

When you signed these forms, you and your spouse were trying to have children together. The last possible thing on your mind was that you and your spouse might get divorced someday. So it was OK with you that the choice you and your spouse made on the consent form was that s/he gets to decide what happens with the frozen embryos in the event of a divorce. Now, suppose s/he wants to use those embryos to have a child or children, and you don’t want them to be used. Can you be forced to have children against your will? The answer is “maybe.” A trial court in Missouri has now ruled on this issue, but the ruling is being appealed. Suppose, for example, that you are the husband, and your wife wants to use the embryos to have children. She has no other children. She has had cancer treatment which has made it impossible for her to have children in the future. Using these embryos is the only way she can ever procreate. Some courts, including a court of appeals in Illinois, have held that under these circumstances the wife can use the embryos to have children, even though the husband did not want to have children using the embryos. Those courts have said the husband is bound by the consent form he signed, in which he agreed to let the wife decide what happens to the embryos in the event of a divorce. Now suppose the facts are different. Suppose you and your wife already have children, or your wife has children from another marriage. Courts in other states have essentially said that they were not going to force the husband to have children against his wishes. Appelate courts in Missouri have not yet ruled on these issues.

Imagine the emotional and financial implications of being divorced and then discovering your former spouse is able to have children from embryos, making you a parent in the process. Will you want to have a normal, full relationship with that child, who is being born against your wishes? This would be a child born after a divorce, and now you have to co-parent that child with your ex-spouse. If you are the genetic parent, you are going to have financial responsibility for that child, whether you want to or not. Now put the shoe on the other foot. Suppose you are the one who wants to have children from these embryos, but because of this consent form, your former spouse is going to have the embryos destroyed. What if you can’t have other children? These embryos are your only chance to be a genetic parent.

In either case, the consequences of having not cared enough about what choice was made on this consent form are devastating. The lesson here is probably that neither spouse should have the sole control over that decision in the event of a divorce. Perhaps the best way to proceed is to require any future use of the embryos to be agreed upon by both parties. Talk to a lawyer who has experience in this field before you sign the IVF consent forms.

People going through IVF are doing so because they don’t have other options for having genetic children. The decision a married couple makes to have children through IVF is the result of a mutual undertaking to grow their family. Decisions made under these circumstances are likely to be completely different when a couple breaks up, or gets divorced. Both parties should talk to an attorney before they sign these forms. At least get legal advice from someone who knows, so that your decisions about these critically important matters will be informed. Think about what is at stake — building your family. Don’t take shortcuts. The attorneys at Paule, Camazine & Blumenthal, P.c. can help guide you through this process.

Disclaimer

Tim R. Schlesinger

Tim R. Schlesinger

Tim Schlesinger practices in the Firm's family law group as well as providing estate planning representation. He has been instrumental in developing the law of assisted reproductive technology on a national basis, including issues of surrogacy, egg donation, embryo donation, and third-party assisted reproduction In addition to his legal work, Mr. Schlesinger is on the Board of Directors for The Women's Safe House.