Embryos. Divorce.  These two seemingly disparate words have a growing connectivity in light of increased infertility rates worldwide.  As professionals involved in the divorce arena, you may be asked to resolve or mediate disputes that ask the question, “What happens to frozen embryos during divorce proceedings?” This article will provide an overview of how these disputes are resolved and what factors are involved in legal analysis.

What exactly is a cryopreserved embryo?  Generally, they result from a human egg and human sperm which are combined using in vitro fertilization.  Instead of being transferred into a woman’s uterus, they are frozen with liquid nitrogen.  The dilemma over disposition of embryos is more commonplace due to the intervention of fertility treatment used to assist in family creation.  A typical scenario involves a married couple utilizing IVF and in so doing are left with extra embryos as a result of that procedure.

If the parties decide to cryopreserve the embryos, they are also asked to sign a storage consent agreement.  And therein lies the problem.  Sometimes their intentions are unclear because the  documents evidencing their intent were poorly written or perhaps conflict with other documents.  Or, perhaps one of the parties just changes their mind.  Whatever path occurred leading to conflict, litigation may result.

There is no federal regulation governing disposition of embryos.  Therefore, states are left up to their own devices.  Analysis of case law nationwide reveals a variety of methods used by courts to resolve these issues.  Three approaches are common.  Firstly, a court will ask whether or not a contract exists. Secondly, they may look at a balancing of interests between the parties.  And, finally, a court may determine whether or not there is contemporaneous mutual consent between the parties.

A look at case law shows just how complex and fraught with emotion these cases can become.   That each case is unique and dependent upon the particulars of each circumstance is reflected in the divergent case outcomes.  Generally, courts will first examine relevant documents to determine whether or not a contract exists.   Typically clinics provide an embryo disposition document allowing intended parents to decide what to do with extra embryos.  Options may include immediate thaw and disposal, donation to science, cryopreservation storage, donation to a clinic’s embryo donation program, or storage for future use designated to a particular person.  Hopefully the document reserves dispositional authority to the progenitors. However, in some instances couples will  cede that right to the courts.  An embryo storage agreement may also exist which should provide instruction as well.  Sometimes storage agreements conflict with a clinic’s dispositional document.  A review of decisions shows that the majority of cases will honour the intent of the parties as evidenced in dispositional agreement before courts look to a balancing of interests. Depending on the clarity of the documents, a balancing of interests comes next.  Does a party’s interest in having another child outweigh the other party’s constitutional right not to be a parent?  Is there a medical reason in play?  How does that state view the  legal status of the embryo? Is it considered property or does it rise to the status of a person?

The divorce process is itself not typically a pleasant scenario.  Divorce coupled with a fight over embryos can be emotionally taxing.  According to Bette Galen, MSW, LCSW, “Most couples do not enter marriage thinking about their potential divorce. If they have used medical intervention to create embryos, they have been counseled about disposition opportunities and have been consented. When couples are in the midst of treatment, it’s often hard for them to fully understand the magnitude of this decision. They have struggled to get pregnant and are now cautious  not to get ahead of themselves by believing that treatment will work.  Fast-forward to a contentious emotional divorce: this can be compounded by each partner’s demand to protect their DNA. For heterosexual couples, the female partner may feel it’s the last chance to have a genetic child, while the male may want the embryo(s) destroyed. When the lawyers enter the equation, emotions escalate and they are forced to face this multi layered decision.”

Divorce professionals can proactively nip problems in the bud by setting up a system of fact finding.  I suggest adding a query about  cryopreserved  embryos in your intake questionnaires. Obviously, if the answer is a ‘yes’ and there is an ownership or usage dispute, then you will have to step lightly into this sensitive arena.  Partnering with a reproductive attorney well-versed in these issues is advisable.