BY YIFAT SHALTIEL, ESQ.
Yifat Shaltiel is a Reproductive Law attorney and owner of Surrogate Steps, a surrogacy agency
As more couples turn to in vitro fertilization (IVF) to build their family, the storage of unused frozen embryos for future use is increasingly common. While couples often sign an agreement specifying how these embryos are to be utilized, when couples separate, their views on how to use these frozen embryos may change, leaving the courts to decide the fate of these embryos.
The technology enabling the freezing of embryos dates back to the mid-1980s, and as couples have been separating in greater numbers, disputes over the disposition of frozen embryos has also risen. Before IVF takes place, couples generally sign a contract specifying what will happen with the embryos in the event that the couple separates, divorces, or if one or both of them die. The options as to the disposition of the embryos are typically (1) to destroy the embryos, (2) to donate the embryos to medical research or a third party recipient, or (3) the couple can decide that they will jointly have authority or that only one of them will have the sole authority as to the disposition of the embryos. In most cases, couples make this decision while they are at the fertility clinic, and without consulting an attorney. With the passage of time situations can change, and especially after a separation, a couple may no longer have the same intentions regarding the use of their frozen embryos.
At the time that a couple signs the contract, they are often focused primarily on building their family, and may not even fathom the possibility of separation or divorce. It is uncertain how much instinct and feelings versus rational thought and deliberation operate when couples sign this contract. Do they ask themselves important questions such as: Do they really want to have children with their ex-spouse? Do they understand that they will be responsible for child support? Do they understand the child may have a right to inherit? Contracts are important and we should be able to rely on them and know that they will be enforced. However, does a person want to be forced to have a child and be responsible for that child long after the couple has separated or divorced?
As courts have been ruling in these cases, they have consistently declared that embryos are not persons and that they are not life. However, the courts have also recognized that embryos have a potential for life and cannot be allocated like an iPad or a house. Having said that, when it comes to the disposition of embryos, the laws vary from state to state, and the courts have generally favored the right not to procreate (but not always). Overall, courts have been applying one of three approaches: (1) they enforce the contract between the parties; (2) they use a “balance test” to balance the right to procreate versus the right not to procreate. Generally, they favor the right not to procreate so long as the other party has a reasonable possibility of achieving parenthood by other means; or (3) the courts can apply the “contemporaneous mutual consent” approach, requiring a mutual consent by both parties for the disposition of the embryos, often resulting in the embryos remaining frozen until an agreement is reached between the parties.
So what should couples do? Before creating and freezing embryos know the views of your spouse or other party regarding the disposition of the embryos, read the contract carefully and ask important questions such as, do you really want to give your spouse sole authority as to the disposition of the embryos? Do you really want children with your ex? And just as you would seek the advice of an attorney with a prenuptial agreement or other important contracts seek the advice of a reproductive law attorney to understand all of the legal implications of what you are signing.