What Happens to Frozen Embryos After Divorce?

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’ve been together for 10 years and married for six.  They’ve been focusing on their careers for many years but now have the financial security to begin thinking about children. However, they’re in their 40s, and the wife’s “fertility window” is closing unless they use some of the amazing advancements in fertility treatments 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 don’t 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 a 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, asking such questions as:

• 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’re 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 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.

2. 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.

3. Consult an experienced family law attorney.

Get some advice from them about the law and about things you may not have thought of. (Click here to view a court case over frozen embryos.)

4. Put your agreement in writing.

Then execute it, and store 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’ll gain peace of mind knowing you and your partner will have control over the outcome of your fertility decisions.

Katherine O’Rourke is a family law attorney and partner at Tucker PLLC. If you’re looking for legal guidance on your fertility journey, contact Katherine at korourke@tuckerfamilylaw.com or schedule a consultation.