Divorce involves a complete division of all of a couple’s marital property. This often includes homes, vehicles, investments, retirement accounts, businesses, intellectual property, personal and household belongings, and items such as art, jewelry, and collectibles. Another type of marital property that is becoming more common in divorces is genetic material.
Increase in Fertility Treatments
When a couple undergoes IVF procedures, the result is usually embryos made of genetic material of one or both spouses. These types of fertility procedures are increasing lately for several reasons. Infertility rates are increasing as some couples wait until later in life to try to conceive. Some employers now provide IVF as a benefit of employment, so some couples take advantage of it just in case. And the pandemic has increased some people’s interest in home and family.
The New York University Langone Fertility center has had a 30 percent increase in patients between June and December of 2020. Seattle Reproductive Medicine saw an increase of 15 percent between 2019 and 2020. Since the production of frozen embryos through fertility treatments is rising, it makes sense that more and more divorces will involve ownership of those embryos.
Emotionally Charged Issues
The fertility process itself is deeply emotional for any couple going through it. When that couple divorces, the embryos they have in storage can be the source of heated disagreement. One spouse might be completely infertile by the time of the divorce, leaving them no other way to create a biological child. The embryos may have been created using donated material for the egg or sperm, or both.
If either egg or sperm has been donated, only one spouse is a biological parent, and they may have different feelings about the embryo than the other non-biological parent. The spouses may have completely different needs and feelings (which may be equally compelling) about the embryos at the time of divorce, making the situation particularly difficult.
Modern Family Dispute
Modern Family actress Sophia Vergara and husband Nick Loeb ended up in court about their frozen embryos after they divorced. When the couple created the embryos, the agreement they signed at the fertility clinic stated that they both had to agree to use the embryos for any use. The agreement did not mention what would happen if the couple separated or divorced (California law now requires that these agreements specifically contain a clause about this). When they divorced, Loeb wanted the embryos for his use. Vergara disagreed. Recently the judge in their case held that the agreement they signed at the fertility clinic would be upheld, and the embryos could only be used if they both agreed.
New York State Law
In New York state, frozen embryos are not legally considered children, so there can be no custody proceeding to determine their disposition. They also are not considered just another form of marital property.
The law on this topic in New York is from a case called Kass v. Kass. In that case, the couple signed an agreement that unused genetic material from their IVF procedures would be donated to research if they could not agree on how to use it. When the couple divorced, one of the spouses asked the court for custody of the genetic material. The court held that the agreement they signed when they began IVF was binding and would be upheld – they could not agree, so therefore the embryos would be donated to research. The court said that when a couple signs consent forms for IVF, the agreement they reach about the use of the embryos in those consent forms will be binding. This rule has been upheld in later cases, so New York law is clear that ownership of embryos at divorce will be controlled by the terms of the agreement the couple makes when they create them.
Protect Yourself with a Prenuptial Agreement
While it is important to have any consent or agreement for IVF procedures reviewed by an attorney, there is another way to plan for the disposition of frozen embryos in the case of a divorce. A prenuptial agreement (entered into before marriage) or a postnuptial agreement (entered into after the date of marriage) can include clauses about ownership and use of frozen embryos in the case of divorce. There are a lot of options for a couple to choose from. The clause can state that in the case of divorce:
- Both spouses must agree in order for the embryos to be used
- The embryos will be owned by one spouse named in the agreement
- Half the embryos will belong to one spouse and half to the other
- The embryos will be donated to research
- The embryos will be donated to an embryo adoption clinic
- The embryos will be destroyed
Frozen embryos are a very difficult issue to deal with during a divorce. The best way to avoid heated and sensitive disagreement at divorce is to seriously consider the disposition options at the time the agreement for IVF is created. Prenuptial and postnuptial agreements can also provide the couple with an opportunity to think through and negotiate an outcome they both feel comfortable with.