Assisted reproductive technology has made overwhelming leaps and bounds in the last few decades. In-vitro fertilization (IVF) has successfully provided options for those facing fertility issues, medical obstacles, or timing problems. Whatever the reason, embryo cryopreservation (aka freezing) for IVF is more and more common. Unfortunately, the law has failed to keep up with the changes and the divorce courts are feeling the pressure.
So the question is: who gets the embryos in the divorce?
The difficulty in finding an answer originates from defining the unique characterization of frozen embryos as well as the possible effects that new laws could have on fertility clinics. When faced with a dispute over embryos, the Courts generally take one of two legal approaches, using either (1) contract law, or (2) constitutional law.
Under a contract law theory, courts across the country have held that agreements signed at the outset of the IVF process are controlling unless the agreements would force one participant to become a parent against his or her wishes. Clinics require that both participants-the people providing the eggs and sperm that create the embryos-sign a myriad of forms before starting the IVF process. The agreement will usually contain clauses or consent forms wherein the participants decide what will happen to the embryos in the event of different situations, including death, delay, and divorce. If the agreement states that the embryos will be discarded upon divorce, then the agreement is binding on both parties regardless of the desires of one party later on.
However, the same absolute rule will not apply if the agreement provides for use of the embryos by one participant or donation of the embryos (whether to another couple or for medical research). Courts have held that an agreement cannot systematically force one person into becoming a parent against his or her wishes, which takes us into the Constitutional approach. That being said, no Texas court has ruled on a disposition of embryos when one party wanted have another child with the embryos and there is a conflict with the agreement or lack thereof.
Under a constitutional law theory, the right to have a child and the right to not have a child are key. The trend is that the courts will not force one person to become a genetic parent against his or her will. Thus, a court facing this issue could rule as follows:
1. If the participants do not have an agreement or consent form that states what happens to the embryos in the event of divorce, then the court will not force one person to become a parent against his or her wishes;
2. If the participants do have an agreement, but it awards the embryos to one person, then the court may disregard the agreement so that one person is not forced to be a parent against his or her will; and
3. If the participants do have an agreement, but it states that the embryos will be donated either for implantation of another couple or for medical research, then the court may disregard the agreement so that one parent is not forced to be a parent against his or her will.
Thus, the only answer is this: couples should plan ahead when considering IVF. No one plans on getting divorced, but every couple should be weary of the possibility when they choose to freeze embryos. Whether considering the IVF process or already involved, you should absolutely contact an attorney with any questions or concerns.