When a couple is divorcing, and they have previously taken steps to preserve fertilized embryos for possible later implantation, who gets to decide the fate of the frozen embryos?
Here is a fairly typical scenario. A couple works with a clinic through several rounds of in vitro fertilization (“IVF”), and are successful in having a child. As a part of that process, the clinic freezes and preserves several embryos for possible future use. The marriage then becomes rocky, and the couple decides to divorce. The wife is now older and has greatly diminished egg production. She wants to keep the parties’ frozen embryos for purposes of possible future implantation since it appears unlikely that she will have viable eggs in the future. If she is not able to use these embryos, she believes she will be unlikely to have any more biological children. Her husband, however, wants the embryos destroyed or donated to medical science. He is concerned about his own possible legal exposure for child support in the event that a child for whom he is the biological father is born. In addition, he is concerned about giving over complete control over the embryos to a person with whom he is now quite angry. Finally, he simply is uncomfortable with the thought of having a biological child living with another family. He asserts that although his wife has compelling interests, he also has an interest in not procreating.
The legal response to this scenario varies greatly from state to state. (Note that with rare exceptions, family law issues are determined by state rather than federal law.) Some states follow the California model which requires that consent and notice forms be signed in all IVF matters. This approach requires the parties to make a decision and commit it to writing at a time when they are still on good terms and able to make choices about whose interests should take precedence. In some of these states, the parties’ prior written agreement to destroy the eggs in event of a divorce controls even over one of the parties’ later objection and change of heart.
Other states have used what is called a “balancing test” to decide whether later facts that arise make enough of a difference to order the eggs preserved or destroyed notwithstanding an understanding or written contract between the parties.
In our hypothetical fact pattern above, if the parties had lived in Tennessee, the husband would have prevailed. In 1992, a Tennessee court ruled that one party’s right not to procreate outweighed the other party’s right to procreate. However, a decade later in 2012, an Illinois court came out with just the opposite result. With different facts, the court ruled that, where the wife had no other way or method to procreate biologically, her right to procreate outweighed the husband’s objections.
Which party’s rights should prevail? There is as yet, no clear answer. In this complex and troubling legal landscape, it is important that each party have sound legal advice at the time that embryos are frozen, as well as later in the event of a divorce.