If My Spouse and I Froze Our Embryos, But Are Now Getting Divorced, What Happens to Them?
According to the US Society of Assisted Reproductive Technology, between 1987 and 2015, there were approximately one million babies born via assisted reproductive technology, including IVF. Embryo disputes are becoming more and more common in family law, whereby, instead of fighting over child custody, a couple might fight over what happens to and/or who gets their frozen embryos upon divorce or separation, and whether these embryos are considered to be marital property; in part due to couples wanting to wait longer to have children and start a family.
And yet, advances in technology also sometimes bring complications to the field of law, as legislatures and courts cannot always keep up with technological innovations, as has been the case for cryopreservation. While Florida, for example, already has a law in place that attempts to prevent frozen embryo disputes by requiring doctors and couples to enter into written agreements regarding the disposition of eggs, pre-embryos, and sperm before they start the process, at the same time, statutes like these aren’t necessarily helpful in resolving disputes, as, in the absence of a written agreement, decision-making authority regarding the disposition of these embryos regards jointly with the couples, which can then lead to litigation when there is disagreement. or the courts sometimes cannot agree on an interpretation of a couple’s existing contract. In addition, some legislatures in states such as Arizona have even taken it upon themselves to override some of these written agreements and direct judges to grant any viable embryos to the “spouse” who will use them to create life, regardless of what the contract dictates.
Look to The Clinic’s Contract & Work with an Attorney Early, If Still Possible
While, in Florida, the most straightforward way to resolve these disputes is to take a close look at any contract signed by the contract and the fertility clinic, still, these forms can be very confusing. Let’s take a look at one Florida fertility clinic’s consent form regarding the disposition of these embryos as an example: The form provides clients with the choice of either continuing to store the cryopreserved embryos, or:
- Donating them (to someone else, research, etc.);
- Disposing of them;
- Thawing and transferring them to your or a surrogate’s uterus; or
- Transferring them to another storage facility;
- and states that, in the event of divorce or dissolution of the partnership, the ownership and other rights to the embryos will be “directed by court decree or settlement agreement,” which essentially means that a couple that parts ways and cannot agree will end up in court over the issue.
As a result, some may feel more comfortable working with an attorney before they sign any paperwork in order to ensure that they understand what they are signing and that their wishes regarding any disposition of embryos are followed. For example, as a result of these complications, as well as uncertainty for a number of individuals, some reproductive doctors have advised female patients to take sole custody of the embryos in case they need them in the future.
If You Have Questions About the Disposition of Frozen Embryos Upon Divorce, Contact Our Experienced Florida Family Law Attorneys
Because this area of the law is still developing, and there are a number of questions that remain unanswered, it is an area where working with an attorney is advisable. This is especially important if you are meeting with your family law attorney to discuss divorce, for example, and you went through any fertility treatments and signed any related contracts so that you and your attorney ensure that the issue of the distribution of your embryos is addressed.
At the Arwani Law Firm, our Orlando family attorneys work one-on-one with our clients and tailor our work towards each individual’s needs. If you have any questions or concerns with respect to family law or a related issue, we will work with integrity and professionalism to provide the help you need Contact us today for a free phone consultation to find out more.
Resources:
floridafertility.com/forms/ASSIST_REPRO_CONSENT.pdf
azleg.gov/ars/25/00318-03.htm
cdc.gov/art/pdf/2015-report/ART-2015-National-Summary-Report.pdf
