How to Avoid an Embryo Dispute
As more couples turn to in vitro fertilization (IVF) to grow their families, the storage of unused frozen embryos has become increasingly common. But when relationships end, disagreements often arise over what should happen to those embryos, leaving courts to make difficult decisions about their fate.
The Rise of Embryo Disputes
The ability to freeze embryos has existed since the mid-1980s. As the use of IVF has grown, so too have disputes between former partners over the control or use of frozen embryos.
Before IVF treatment begins, most fertility clinics require couples to sign a contract specifying what will happen to embryos in the event of separation, divorce, or death. Typical options include:
Destruction of the embryos
Donation to medical research or another recipient
Assigning authority—either jointly or to one partner—to decide the embryos’ future
In most cases, these decisions are made quickly at the clinic, often without legal counsel. Over time, however, circumstances and intentions can change—especially after a separation.
Why These Agreements Can Become Problematic
When couples sign these contracts, they’re usually focused on creating a child, not the possibility of divorce. Important questions may go unasked:
Would I want my ex-spouse to raise a child that’s genetically mine?
Could I be legally responsible for child support?
Would this child have inheritance rights?
Contracts are designed to be binding, but emotional and ethical considerations make embryo disputes uniquely complex. Should someone be forced to become a parent long after a relationship ends?
How Courts Handle Embryo Disputes
Courts have consistently ruled that embryos are not legally “persons,” yet they are more than property because they carry the potential for life. The approach to resolving disputes varies from state to state, but three main legal frameworks are used:
Contract Enforcement – Courts uphold the original agreement signed by both parties.
Balancing Test – Courts weigh one party’s right to procreate against the other’s right not to. In most cases, the right not to procreate prevails if the other person has reasonable alternatives for becoming a parent.
Contemporaneous Mutual Consent – Both parties must agree on the embryos’ disposition. Without mutual consent, the embryos remain frozen indefinitely.
Although outcomes differ, U.S. courts generally lean toward protecting an individual’s right not to procreate.
How to Protect Yourself Before IVF
Before creating and freezing embryos, it’s crucial to have open, honest discussions with your partner and understand all legal implications.
Read the contract carefully before signing.
Ask hard questions: Do you want your partner to have sole authority over the embryos? Would you want to share a biological child after a breakup?
Consult a reproductive law attorney. Just as you would seek legal advice for a prenuptial agreement, an attorney specializing in reproductive law can ensure you understand your rights and options.
Taking the time to consider these questions before starting IVF can help you avoid painful disputes later—and protect both your emotional and legal well-being.
BY YIFAT SHALTIEL, ESQ.
Yifat Shaltiel is a Reproductive Law attorney and owner of Surrogate Steps, a surrogacy agency.
