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How to Handle Frozen Embryos During Divorce

Medical science has made huge strides over the past several decades, particularly in the field of assisted fertility. Treatments like in vitro fertilization (IVF), surrogacy, and intrauterine insemination (IUI) have allowed thousands of California couples to become biological parents. They even allow couples to save their genetic material, including fertilized embryos, in case they want to have additional children later. But what happens to the frozen embryos after divorce?

For the past decade, that’s been a major point of debate. Many couples have understandably strong feelings about what should happen to their genetic material if they are no longer together. When spouses’ opinions about the future of their embryos conflict, it can lead to serious disputes. 

Why Frozen Embryos and Genetic Material May Cause Divorce Disputes

It’s hard to find a more personal subject than your genes. While there are many ways to become a parent, many people feel strongly about having biological children to carry on their family legacy. Others feel just as strongly that they don’t want to become genetic parents, or at least not with their ex-spouse. 

The problem is that California, like most states, requires both biological parents to support a child once it is born, regardless of whether either person wants children. If one spouse doesn’t want kids anymore, but the other parent uses a pre-existing frozen embryo to have a baby, the other person may be stuck supporting a child they never wanted. 

That’s just the tip of the iceberg regarding disputes about frozen embryos. Other concerns that could lead to litigation include:

  • Moral issues: There has been much debate about whether an embryo counts as a child or as property during a divorce. While California and many other states have chosen to treat fertilized eggs as property, individuals still may not see them that way, potentially leading to disputes. 
  • Fertility problems: While technically, any couple might choose to use IVF or similar treatments, few bother unless at least one person has issues with fertility. If spouses have already invested in treatments to fertilize eggs, the resulting embryos may be their only reasonable option for having biological children. One spouse may want to keep them for this reason, even if they originally agreed to destroy them. 
  • Abuse concerns: Anyone who divorces their spouse because of abusive behavior could be rightfully concerned about the possibility of a fertilized egg tying them to their abuser for life and want them destroyed after a divorce, regardless of their earlier preferences. 
  • Changing parenthood preferences: Sometimes, people change their minds. Spouses may decide they want embryos destroyed when they originally wanted to keep them, or vice versa. If the other person doesn’t agree, this can lead to significant disputes. 

Do Contracts Count in Embryo Disputes?

One of the most contentious issues surrounding assisted fertility and genetic material has been whether and when contracts are legally binding. In California, state law requires couples to sign consent forms that establish advance directives regarding the disposition of embryos in various circumstances. These contracts are invaluable for determining what happens to embryos when spouses disagree or change their minds during a divorce.

However, clinic consent forms aren’t the only contract that might be involved. There may be multiple contracts that contradict each other. For example, couples may set terms for the ownership of embryos and genetic material in prenuptial agreements long before they sign a consent form at an IVF clinic. Additionally, couples that undergo multiple treatments may set different terms for each batch of embryos. 

Case law has begun to catch up to the complexities of assisted fertility contracts, though. In general, the last agreement signed on a matter takes precedence. For example, in the 2015 case Findley v. Lee, a San Francisco judge ruled that one spouse could not violate the contract ordering the embryos to be destroyed in the case of a divorce simply because they changed their mind. 

Similarly, in a 2020 landmark celebrity case, a Los Angeles judge ruled that Nick Loeb could not use the frozen embryos he and Sophia Vergara had created without her explicit written consent, as it would breach the contract they had both signed. 

But what happens if a contract states the embryos should be donated or granted to one spouse? That is more complicated. Both rulings above, which set important precedents statewide, focus on contractual language. Theoretically, if an agreement to donate or transfer ownership of the material is clearly written and signed with both spouses’ full consent, it may be enforced. 

However, other cases nationally have prioritized the “right to not procreate” over “the right to procreate” previously – for example, the 1992 case Davis v. Davis in Tennessee ruled that one spouse’s right not to procreate was greater than the other spouse’s right to reproduce by donating their fertilized embryos. 

Similarly, the Massachusetts case A.Z. v. B Z. ruled that if one parent wants embryos implanted while the other does not, enforcing a contract that grants ownership to the party seeking children violates the other person’s right not to procreate. Under this interpretation, it could be argued that people have the right to have embryos destroyed despite existing contracts. No federal laws or judicial precedents address this issue, so it remains to be seen how similar issues would be addressed in California. 

Addressing Embryo Ownership During Your Divorce

If you have frozen embryos or other genetic material left over from assisted fertility treatments, you’re in good company. However, this material potentially poses problems if you and your spouse disagree on their fate. 

The best way to avoid embryo ownership disputes is by taking preemptive action. Destroying leftover materials or freezing sperm and eggs separately can prevent embryo custody problems. However, if you already have fertilized eggs on ice and you’re preparing to split up, it’s time to talk to the skilled California divorce attorneys at Kaspar & Lugay LLP. We can help you understand your rights under your prenuptial agreement and IVF consent contract and advocate for your preferred outcome in court. Schedule your consultation today to learn how we can assist you with IVF and related concerns during your divorce.