In a Divorce, Who Gets the Embryos?

A divorce can be complicated, especially when children are involved. It can become even more complicated when a child is planned, but has not yet been born.

Couples sometimes choose to create embryos (fertilized eggs) through in-vitro fertilization (IVF) for many reasons, with treatment for current fertility issues being the most frequent. Successful IVF cycles can leave ‘spare’ embryos that are not yet implanted. Couples may also perceive a future deterioration of the health of one of the parents, which may harm their eggs or sperm, such as undergoing cancer treatment. Or an aging couple may desire to have a child that is genetically theirs by a surrogate mother. Whatever the reason, if the marriage sours, the disposition of the embryos is an important part of the divorce discussion. What happens to the embryos that the spouses have created through IVF and then cryogenically stored awaiting implantation?

When beginning IVF, most in-vitro fertilization clinics require that prospective parents sign a consent agreement authorizing the preservation of the embryos created during the process, including their disposition, should the couple split. This agreement is incredibly helpful to the couple as well as the courts, whenever one member of the couple changes his or her mind because circumstances have changed.

A Possible Case

Let’s look at the possible situation of Samantha and Jeremy. From the beginning of their relationship, they wanted to have children, but they put it off due to their careers. Samantha learns in her late 30s that she has cancer, and the couple decides to use in-vitro fertilization to preserve a few embryos for possible use later. The IVF clinic provides them with a standard form to sign, requesting that they designate the disposition of their unused cryopreserved embryos, in case any unexpected events occur. They both indicate that they would like the embryos used for research. They do not seek the advice of an attorney to review the agreement before they sign it.

A few years later, the couple decides to get a divorce. Samantha, now in her early 40s, desires to take ownership of the preserved embryos so that she can have a baby. Jeremy on the other hand, does not want Samantha to use the embryos, and he does not want to pay child support, if she uses them.

What does California law say about who gets the embryos?

California Statutory Law Health and Safety Code Section 125315 states that when providing fertility treatment, a physician and surgeon or other healthcare provider shall provide a form to the male and female partner, or the individual without a partner, as applicable, that sets forth advanced written directives regarding the disposition of embryos. This form shall indicate the time limit on the storage of the embryos at the clinic or storage facility and shall provide, at a minimum, the following choices for the disposition of the embryos based on the following circumstances:

In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:

(A) Made available to the female partner.
(B) Made available to the male partner.
(C) Donation for research purposes.
(D) Thawed with no further action taken.
(E) Donation to another couple or individual.

Will this agreement hold up in court?

After a couple signs a written directive agreement at the IVF clinic, is that agreement iron clad in court, should one of them change their mind? Recent cases in California point to, yes, a couple is held to their signed agreement as to the disposition of the embryos, should they get a divorce.

That’s why it is so important for a couple to discuss with one another and make a decision about what should become of their frozen embryos in the event of a divorce, as they consider in-vitro fertilization. A quick decision made today can have far-reaching consequences in the future.

If you are considering in-vitro fertilization and wish to discuss the legal ramifications, please contact our office for a free consultation.

Attorney Christina Sherman is a Marin County CA family law attorney and Certified Family Law Specialist, specializing in divorce, child custody and support, marital contracts and other family law issues.

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