What happens to a couple’s frozen embryos if they divorce?

What does adulthood look like? Ask a child, and that child might tell you that adulthood is getting older, getting a job, getting married and having children. But neither adulthood nor life are ever so simple as children may perceive them.

Many couples marry with the intent to start a family. However, difficulty conceiving is a common problem. As a result, couples grappling with infertility often explore in vitro fertilization. If those couples later get divorced, it could lead to arguments over the frozen embryos.

The Colorado Supreme Court weighs in

The Colorado Supreme Court recently heard the case of a couple who had six frozen embryos when they decided to divorce. The couple had already given birth to three children they had conceived through in vitro fertilization, and the mother wanted to keep the embryos. The father wanted them thawed and destroyed.

The Colorado Court of Appeals initially sided with the father, but the Supreme Court later reversed that ruling and sent the case back to the trial court, instructing it to consider six different factors:

• How the party that wants to preserve the embryos intends to use them
• The prospective parent’s ability to have children through other means
• Why the couple originally chose to pursue in vitro fertilization
• What hardship the decision might cause for the spouse that wants to avoid becoming a genetic parent
• Either party’s demonstrated bad faith or attempt to use the embryos as leverage
• Other relevant factors in the couple’s specific circumstances

The Supreme Court also listed three factors that the courts should not weigh into their decisions:

• Whether the prospective parent can afford the child
• Whether the prospective parent could adopt
• How many children the prospective parent may already have

Ultimately, the guidelines issued by the court make for a subjective decision.

Why this case matters

The number of couples using in vitro fertilization to conceive has been on the rise in recent years. Consequently, the number of couples going through divorce with shared frozen embryos is also likely to increase.

While this case may have taken place across the country, it could have implications on North Carolina as well. The question of which parent can claim ownership of their shared genetic, embryonic property is a relatively new issue—which has not been raised in many courts in the U.S. It has the potential to affect both parents’ constitutional rights. Because of this, it is possible that this case could be appealed in the U.S. Supreme Court. Any decision made in this court would affect the rule of law for the entire country.

Careful planning makes a difference

If you’re going through a divorce, the possibility of destroying the embryos that could make you a parent—or, on the flip side, being forced to become a parent with someone you no longer want to have children with—is extremely stressful. Leaving such a decision in the hands of a court can be traumatic.

If you and your spouse are have decided to freeze your embryos, planning for what will happen to them in the event of a major life change is wise. A thoughtfully conceived pre- or postnuptial agreement can make all the difference to avoid having your parental fate decided by a court.