What Will Happen to Frozen Embryos in Divorce?

Embryos vs Eggs vs Sperm Cells

Embryo refers to a fertilized egg, meaning an embryo has the potential to develop into a human baby. Whereas eggs and sperm cells do not have such potential by themselves. These days, people are putting off having children longer and longer, which has made freezing eggs and sperm an even more common practice. If you are freezing eggs and/or sperm cells, do not assume that, since you made them, they’re yours and your partner has no say in what happens to them in the event of a divorce. Fertility clinics have patients sign contracts that specify what will be done with the embryos, eggs, and/or sperm cells in the event of death, divorce, or the end of the relationship. If, for example, you have put that your egg samples are to be destroyed in the event of a divorce, you may not have any recourse to prevent such a thing from happening. Anything that is done under the contract will be bound by the contract; so, if you have an egg retrieval under the contract, those eggs will be subject to the terms of the contract. However, if you go to a different clinic, or have a procedure done after divorce, those samples would not be affected by the previous contract.

What Does Your Contract Say?

What would happen with the samples would largely depend on the terms of the contract with the fertility clinic you worked with. It is standard procedure for patients to sign a contract dictating what will happen to the embryos, eggs, or sperm cells in the event of a death, or divorce/end of relationship. Though your contract might not be the end-all-be-all deciding factor, it will play a significant role in deciding what will happen to the embryos in the event of a divorce. Usually, courts are inclined to act according to the contract you’ve signed, unless there’s a compelling reason to make alternative arrangements.

Can I Take Matters into My Own Hands?

Reputable fertility clinics should not allow one party to just call and order that samples are discarded or donated without the other party’s consent. If you were able to do this, there may be legal consequences. When it comes to transferring an embryo, reputable clinics generally do not allow either party to just waltz in there and transfer an embryo anytime they please, nor do they allow transfers to occur without both parties’ consent. If you have concerns about your ex or partner discarding or transferring embryos without your consent, you will need to speak with the fertility clinic. It may be a good idea to email them (or notify them in writing) and call them to advise them of your situation.

What If a Donor Was Used?

Just because the embryos are not the biological product of both parties does not mean that only one person has a say in what happens to them after divorce. If you used a sperm donor or egg donor to create your embryos, that doesn’t mean that they’re automatically yours and your spouse has less of a say in what happens to them. In such a case, the contract with the fertility clinic would still be important in deciding what would happen to the embryos.

Post-Divorce Embryo Transfers

Post break-up embryo transfers could be a legally precarious situation. Although you may have been awarded the embryos in a divorce, that may not mean that you have the right to transfer them to a third party. Again, this will depend on your clinic, their contract, and the exact provisions in your divorce decree. There may be ethical considerations with transferring an embryo post-divorce. For example, in many cases you’d be transferring an embryo that is your biological child—would that child be raised with his/her other siblings as full siblings? What kind of contact would your ex have with the child? Would your ex be allowed to adopt the child and thus have custody? It would be a complicated situation and difficult for the children involved, as well as the biological parents.