It may not be a first thought when you think of custody, child support, and adoption, but frozen embryos can play a huge role in divorce agreements and disputes.
Embryos contain the genetic material of two people. Unlike sperm or egg cells, they are something a couple creates together, so are subject to scrutiny when that couple gets divorced.
Please understand that this area of the law is not always clear, especially with the changing landscape for abortion and other reproductive issues in the United States.
This article will explain the details and challenges around frozen embryos after divorce and the real-life situations that can further complicate the matter. We’ll also provide insight to how a custody lawyer can help.
Frozen Embryos After Divorce – Destroy or Keep?
Unlike divorce agreements around people and property, the options for frozen embryos (also called cryopreserved embryos) often include destroying them.
If you’re in a state that doesn’t consider embryos people, and depending on the specific laws around reproductive rights, destroying unused embryos could be written into an agreement that you and your spouse signed before beginning fertility treatments.
What Are Frozen Human Embryos?
An embryo is a developing organism in its very early stages. For humans, a sperm has fertilized an egg, and the cells have begun to split, but they are not yet recognizable as a baby.
In fertility treatments, doctors sometimes freeze embryos for people hoping to have biological children in the future. The goal is to have a stable embryo that’s developed as little as possible, so that it may grow into a baby when its parents are ready.
For couples about to enter IVF and other fertility treatments, we strongly suggest a legally binding contract, which the doctor may require anyway.
While you and your spouse might be excited about starting a family, the reality is that not all marriages last. Think carefully about what you will want for your genetic material if it won’t go toward a child you raise together, before you have to worry about what to do with the frozen embryos after divorce.
Custody of Embryos
Ultimately, whoever has custody of the frozen embryos after divorce will be able to decide if they are destroyed, kept, or donated to a third party for research or adoption (depending on state law).
The initial contract might dictate who has custody, or the courts may attempt to make their own decision based on ethics and practicalities.
The latter option is hugely complex, as it involves weighing one spouse’s desire to be a parent against the other spouse’s wishes for their genetic material.
Beyond the two people ending their marriage, there might be a donor to consider. If you’ve obtained sperm or egg cells from a third party, they may have a say in what happens to their genetic material.
Of course, this depends on the original agreement with them and the legal documents around it. Still, this aspect has impacted real world cases, and is important to keep in mind.
Strict Adherence to the Contract
If your agreement states that agrees that frozen embryos after divorce will be destroyed, that’s most likely what will happen. Courts tend to adhere strictly to the contract you signed before the embryos were created, even if it doesn’t reflect your current wishes.
Some couples dictate that one of them will have the right to make the decision about the embryos at that time. If you feel strongly about the situation going into it, it’s likely that you will care deeply about the embryos in the future and will want a say in what happens to them.
Considering Current Realities
Sometimes, the courts will consider what to do with the frozen embryos after divorce if one or both parties has had a change of heart, or if external circumstances have impacted their abilities to parent.
As an example based on actual situations, consider this: A couple freezes embryos because one of them needs medical treatment that will likely impact their future fertility. A few years later, but before using the frozen embryos, they decide to get divorced.
Perhaps the person who underwent treatment wants to keep the embryos, as it’s their only chance for a biological child. But the other person doesn’t want to share a biological child with their ex-spouse, which could mean parenting and child support issues in the future.
The final ruling, if it doesn’t use the terms of the original contract, may build on thoughtful compromise between the parties and their individual capacities to parent (health, finances, etc.).
While the court will consider the wishes of the divorcing people, it will also think about the wellbeing of any babies resulting from the use of the embryos.
Alternatives to Keeping or Destroying a Frozen Embryo After Divorce
You may have another option, and that’s to donate the frozen embryos for:
- Medical research (depending on state law)
- Adoption (if services are available)
Giving your frozen embryos for adoption means they will go to an individual or couple who, for whatever reason, cannot reproduce on their own. The embryos can be implanted into an adoptive parent or surrogate, allowing them to come as close as possible to experiencing biological reproduction.
Navigating these possibilities, as well as the state and federal laws around reproductive choices, is tricky to say the least. It is in your best interest to work with an experienced divorce attorney or custody lawyer to ensure the best outcome for your family.
Frozen Embryos After Divorce – Property or Not?
Frozen embryos are not legally considered property, but they aren’t necessarily considered people either. While the parents may have personal feelings and beliefs about the embryos, the state won’t always take the same stance.
Although frozen embryos aren’t property, the couple can discuss them as such more than they can a living child.
For example, they might reach an agreement that one of them assumes sole custody, as well as sole responsibility for the embryos. They may use them for a pregnancy, but must cover all related expenses, both before and after the birth.
Or, you might make an agreement that the person wanting to use the embryos may only do so for a defined number of pregnancies.
Finally, the couple might settle on a trade of sorts, with one person keeping the embryos and giving their ex-spouse something of value in return.
A prenuptial agreement cannot dictate what will happen with frozen embryos, as they aren’t property and prenups can’t include child custody details.
In addition, the overturning of Roe vs. Wade in June of 2022 has made several legal issues around reproductive rights unclear and varied from one state to another.
Most fertility clinics require a signed, legally binding document before treatment begins. Generally, the courts refer to this agreement when deciding the custody of embryos.
Although this legal precedent makes things simpler, it doesn’t always consider how the involved parties’ lives and outlooks have changed.
One or both of the divorcing spouses may pursue solutions that aren’t in the original contract, but know that this is significantly harder than using the document.
Should a husband or wife who wins custody of frozen embryos be allowed to destroy them against the ex’s wishes? What if the couple isn’t legally married? What if one of the parties isn’t a U.S. citizen?
Questions like this are incredibly difficult to answer, and involve everything from deeply held beliefs to practicalities and the law. The reality is that no one answer will make everyone happy, or suit every real-life circumstance.
For the sake of your future, as well as the future of any children resulting from the frozen embryos, work with a custody lawyer to draw up the best contract for your family. If you’re currently in a battle for rights to frozen embryos, a family law attorney can help there as well.
Call Envision Family Law for Expert Custody Lawyers
With the rate of technological advances, as well as social changes in our country, it’s nearly impossible to say what challenges will arise for divorcing couples who own one another’s genetic material.
One thing’s for certain: It’s not going to get any easier to navigate the law and ethics, even when you understand the issues.
At Envision Family Law, we’ve spent decades helping families through some of the most challenging times of their lives. From welcoming new family members through adoption to divorce to custody of frozen embryos after divorce, we care about making the transition as smooth as possible.