How Does Divorce Affect Embryos Conceived Using IVF?

Posted on: Categories: Family Law

Many couples go through the difficult struggle of conceiving a child. Often times, they turn to medicine to help them conceive, and In Vitro Fertilization (IVF) is one of the most widely-used scientific procedures to help couples with their fertility struggles. As part of the IVF process, typically couples create multiple viable embryos at once. These embryos are then stored in case the couple would like them for future use. While IVF works for many and brings joy to the lives of couples every day, IVF can bring confusion and anger to separating couples. When a couple decides to separate and still has viable frozen embryos, what happens to the embryos? Who makes that call?

When it comes to children, courts tend to act using the “best interest of the child” standard, meaning whatever best supports the child is what their parents are ordered to do. However, this standard has not been applied to embryos which have not yet been born. Interestingly, Florida is one of a handful of states which has taken a lead and dealt with this important legal issue.

Currently in Florida, couples beginning IVF treatment often sign a contract with each other and their physician. This contract addresses what happens to genetic material that is stored as a result of this process, including sperm, eggs, and embryos, including what happens to this material if couples get divorced or separate. This is an incredibly important contract, because courts have held that these documents are legally binding when determining what happens to frozen embryos and other genetic material when a couple separates. Often times, couples do not want to sit down and discuss the unpleasant possibility that they might separate at some point, especially as part of such a hopeful medical process.

However, it is incredibly important that couples undergoing IVF do so. Having a conversation with an attorney about the legal implications of the contract you are preparing to sign and how it could affect either of you in the event you separate is one of the most effective ways of preventing this issue from becoming an incredibly difficult and emotionally-charge part of a possible divorce.

What happens if you underwent IVF without signing a written agreement or if the agreement you signed did not account for what happens when couples separate? In general, whichever spouse provided the genetic material controls what happens to that material. With embryos, when genetic material is combined, the decision about what to do with the material is usually made jointly. In situations where a couple is separating and tensions are already running high, it is important both parties are represented by skilled divorce attorneys who are also trained in negotiation or mediation to ensure that consensus on this sensitive topic is reached in as respectful a way as possible under the circumstances.

Getting Divorced and Concerned About IVF Embryos?

Getting a divorce is never easy, but it can be made much more difficult when couples have to decide what happens to frozen embryos they conceived together through IVF. If you are in this situation, the experienced divorce attorneys at Blair H. Chan, III, PLLC, can help you navigate this delicate and difficult topic. Contact us today to learn more.