What Happens to Frozen Embryos after Divorce?

By | Published On: April 26, 2016

It may seem like an oxymoron to juxtapose something hopeful like beginning or expanding a family with something sad and depressing like getting divorced.  They have nothing to do with each other, do they?

Yet the research tells us that roughly 50% of all couples who get married end up getting divorced. None of us can predict which marriages will succeed and which will fail.

So why should you be worrying about divorce now when you are filled with joy anticipating starting a family?

Let’s consider couple A.  They have been together for ten years, and married for six.  They have been focusing on their careers for many years, but now have the financial security to begin thinking about children.  However, they are in their 40’s and the wife’s “fertility window” is closing, unless they use some of the amazing advancements in fertility treatments which are now commonly being used.  With many of the choices they may choose to make, there will be unused eggs, sperm, and even embryos that can be frozen and survive indefinitely. Years down the road, under what circumstances might these be released to one of the parties?  What if the parties do not agree?  Who “owns” them in the meantime?

Common sense might suggest an answer, such as that the party who pays all or most of the costs should get to decide.  Or that the woman’s choice, because she is more “maternal,” should carry more weight.  And of course, no one who is planning to bring a baby into the world could be expected to contemplate the situation where there is a disagreement in the future.  In extreme circumstances, the court cases show that one party’s “interests” will be balanced against those of the other party, and then a third-party stranger – a judge – will make the final decision.

So, to avoid such an outcome, your work needs to start with the fertility clinic.  What are their policies when the parties disagree?  What do they require each person or couple to put in writing?  What are the safeguards they provide to all clients?

Then, your analysis should shift to you and your partner.  Today, when you are still friendly and loving, what do you say to each other about whose interests should take precedence, if push comes to shove?  And then when you have some verbal a agreement between the two of you, decide what you are willing to put down on a piece of paper and sign, knowing that your agreement will be legally binding, no matter how things evolve in the future.

Some steps you can take, in time order:

  1. Review several fertility clinics. Discuss the policies and procedures of each.  Ask to see a copy of their contract.
  1. Talk between yourselves. It’s not that dissimilar from executing a Health Care Directive, except that two people’s wishes have to be considered.  Speculate about different things that might possibly happen in the future.  Make a decision that, if worse comes to worse, one of you would have the final say.
  1. Consult an experienced family law attorney. Get some advice from him or her about the law and about things you may not have thought of.  Click here to view a recent court case over frozen embryos.
  1. Put your agreement in writing, execute it, and put copies in multiple locations for safekeeping

In summary, when making these vitally important decisions about your family’s future, be mindful that, by being proactive and creating a binding agreement regarding your frozen eggs, sperm or embryos, you will gain peace of mind knowing that you and your partner will have control over the outcome of your fertility decisions.



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