Not all married couples want to have children in their 20s. There are many personal and professional reasons that a couple may opt to start a family later in life. In such cases, couples are increasingly turning to embryo cryopreservation—i.e., the freezing of a woman’s fertilized egg. This process enables couples to start a family later on, when one or both parties may no longer be fertile. This in vitro fertilization (IVF) technology has redefined family planning—allowing couples to have children on their own timeline.
However, if a couple divorces and still has unused frozen embryos, the question of how to treat this shared property can become especially complicated. If each member of the couple is not in agreement on what should be done with the embryos, a lengthy and acrimonious legal battle is likely to ensue.
In divorce cases determining the fate of frozen embryos, courts have ruled all across the board. Sometimes the court allows the IVF clinic to determine how to handle the frozen embryos—whether to donate them to other infertile couples or to destroy them.
In a New Jersey case, the state’s Supreme Court ruled that one partner’s right not to procreate outweighed the other’s right to procreate—and ordered the embryos to be destroyed.
In a similar case in Arizona, however, the court ruled that the partner who still wanted children would be allowed to use the couple’s shared frozen embryos, even though the other partner did not want any more children.
The inconsistency of court rulings regarding the treatment of frozen embryos in a divorce makes it especially worthwhile for couples who are considering embryo freezing to create an agreement about how they want their embryos handled in the event of a divorce. In such instances, creating a postnuptial agreement can be especially valuable. This legally binding contract will allow you and your partner to get on the same page about the future—and avoid unnecessary stress if things go south.
In the event of a divorce, you don’t want a court determining the fate of your genetic property. While no one can predict the future, when it comes to embryo freezing, it’s especially important to plan for all possible outcomes.