Navigating IVF: Securing your reproductive future with Embryo Disposition Agreements
Advancements in artificial reproductive technology, particularly in vitro fertilization (IVF), have revolutionized reproductive options for individuals and couples looking to build their families. But alongside these advancements come complex legal challenges — especially around what happens to frozen embryos when a couple divorces or separates.
Why embryo disposition matters
When couples undergo IVF, they often create and freeze embryos for future use. But if the relationship ends, they must decide what to do with the unused embryos. There are typically several options:
- One party keeps the embryos for procreation
- Donating them for reproductive use by others
- Donating them for research
- Discarding or destroying them
Each option carries significant implications, not only on a personal level for the individuals involved but also for broader ethical and legal frameworks. Disagreements over embryo disposition often stem from differing desires, such as when one person wants to use the embryos to have children, perhaps due to infertility, while the other wishes to discard the embryos.
How courts approach embryo disputes
Courts in the District of Columbia haven’t yet ruled directly on embryo disposition, but neighboring jurisdictions provide valuable precedents. Both Maryland and Virginia have opted to follow a “Best Interest” approach in determining the disposition of cryopreserved embryos, meaning they:
- First, look for any express agreement — a legal document drafted before the embryos’ creation that outlines the couple’s wishes for their disposition in the event of a separation.
- If there is no express agreement, the courts turn to a balancing test to determine each party’s constitutionally derived procreative rights.
This means that if a couple hasn’t made their wishes legally clear in advance, the decision on what to do with the frozen embryos may be left up to a judge.
Why clinic contracts aren’t enough
Many fertility clinics include boilerplate language about embryo disposition in their paperwork, but these forms are often too generic to be legally binding. Since they usually lack expression or direction from the parties involved, these forms usually don’t count as an express agreement between the parties themselves.
Courts have expressed the need for Embryo Disposition Agreements, a formal agreement between two parties signed before starting IVF, and their preference for relying on such agreements versus conducting a balancing test.
How an Embryo Disposition Agreement protects you
An Embryo Disposition Agreement reflects each parties’ desires and actual choices concerning any cryopreserved embryos in the event of unforeseen circumstances, like divorce or the death of one partner.
Creating an Embryo Disposition Agreement:
- Promotes serious discussion between the parties before starting IVF
- Minimizes misunderstandings that might arise in the future
- Provides legal clarity and certainty for progenitors (those who contributed genetic material to create the embryos)
- Decreases the likelihood of litigation
If you’re considering IVF, it’s worth exploring the option of signing an Embryo Disposition Agreement with your partner. By discussing and formalizing your intentions upfront, you can ensure your reproductive choices are respected and minimize the potential for costly, lengthy and emotionally draining future legal disputes
Take proactive steps now to safeguard your family-building journey with legal clarity and peace of mind — so the courts won’t have to decide for you.
Katherine O’Rourke is a family law attorney and partner at Tucker PLLC. For more information about safeguarding your reproductive choices when it comes to IVF, email korourke@tuckerfamilylaw.com or schedule a consultation.
