What happens to frozen embryos in a divorce? Experts say the options are complicated and outcomes can be varied.

When a couple goes through a divorce, what happens to their frozen embryos? Experts say the outcome can vary. (Photo: Getty Creative)
When a couple goes through a divorce, what happens to their frozen embryos? Experts say the outcome can vary. (Photo: Getty Creative)

My husband and I sat across from each other at the dining room table, flipping through a stack of forms the fertility clinic had given us. We had to make decisions before diving into the world of IVF — the heaviest decisions we'd ever made as a couple in 11 years of being together.

I was 34, and had just been diagnosed with breast cancer — not generally a premenopausal woman's disease as only 7% of women diagnosed are under 40. We had just started talking about getting pregnant before I found the cancerous lump in my left breast.

Now, with chemotherapy on the horizon, my fertility could be limited or obliterated by these life-saving poisons. We decided to pursue a round of IVF and embryo preservation just in case. If we had a hard time getting pregnant after my treatment, we could try implantation before considering adoption or surrogacy.

But facing my own mortality, we were also faced with an entirely new set of questions that we never dreamed of addressing.

What would happen to our embryos if one — or both of us — died? What would happen to them if we divorced? Who gets to keep them? Does anyone?

Fertility preservation — an intersection between physical and mental health

The answers to these questions are complicated and wrought with emotion. It comes down to three main options: maintaining the eggs or embryos in storage, donating the embryos to either another couple trying to conceive or for research and training purposes or destruction of the eggs or embryos. These sensitive and difficult decisions are why many lawyers counsel their clients to think carefully before checking the boxes.

Jordan Whitaker Kennelly, an attorney at Atlanta-based family law firm Boyd, Collar, Nolen, Tuggle and Roddenberry, says, "I think it's best to have these conversations at the outset of the [IVF] process when couples are still happy and committed to each other."

"That being said," she adds, "they should take their time when discussing these issues and engage a neutral third party, like a therapist, to help guide the conversation."

Dr. Sheeva Talebian, a board-certified reproductive endocrinologist at CCRM Fertility and IVF Clinic and the Class, a series that helps women and non-binary people understand the mind-body connection of fertility treatment, stresses the importance of involving a mental healthcare provider in the decision-making process, especially if undergoing IVF treatment due to a physical health diagnosis.

"[Doctors] may provide a nurse or other team member who can help explain the impact of the patient's treatment on fertility and help provide referrals to discuss fertility preservation options," she says. "They can also provide mental health counseling to help you navigate the process … this can provide hope that they will get through their treatments and still have the option to build their family."

In the case of divorce, it's contract law, not custody, that rules

According to Vorzimer Masserman, a fertility and family law center in Woodland Hills, Calif., the agreements — like the forms my husband and I filled out over the dinner table that night — that couples enter into before undergoing fertility treatment, either egg or embryo preservation, are legal contracts. But in the case of divorce, these contracts are often challenged.

"Some individuals have urged judges to follow child custody guidelines in these situations and make rulings based on what is in the best interests of the frozen embryos," says a blog post on the firm's website. Most courts around the country stick to the signed contract in these cases, but in some states, like Arizona, laws have been passed granting custody of the embryos to whichever parent will allow the embryos a chance to live.

Kennelly says most courts disagree with the child custody approach. "In the event of divorce, the IVF contract the couple signed at the outset will control the outcome," she says. "If there is no contract, however, the general consensus among courts is that a person's right not to become a parent overrules the person's right to become a parent." If there's a signed contract, someone would have to prove that the contract was either invalid or breached in some way, which can be incredibly difficult.

As different states have different approaches, it's important to understand what your options are in your specific area of the country. Victoria M., who lives in New York City with her wife and prefers to keep her last name anonymous for privacy reasons, underwent a round of IVF in order to conceive their daughter. In New York state, both women's names are on their daughter's birth certificate and on their other frozen embryos, so if anything happens to their marriage, the decision would need to be arbitrated during the divorce proceedings and an agreement would have to be made.

Frozen eggs are different than frozen embryos, however. Frozen eggs only belong to one partner — not to both — so in case of divorce, the woman receives full custody of her frozen eggs, since she can fertilize them with another partner if she chooses. "Since embryos are created with genetic material from two parties," says Kennelly, "the options are more complicated and the outcomes more varied."

Talebian says you'll still have to fill out forms if you're only preserving eggs, though. "The individual planning to freeze eggs will need to make a plan regarding the eggs in event of death, specifically," she tells Yahoo Life. "You'll choose to either thaw them with no further action, donate them for research purposes or donate them to a designated person."

“It’s like a prenup for fertility”

Alona S., who lives in Los Angeles and prefers to leave her last name anonymous for privacy reasons, tells Yahoo Life she is quite a bit older than her husband and was the one who really wanted children at the time. "He also wanted them, but would have been fine with waiting a few years to start trying," she says. "For him, though, he knew that these embryos would be my only opportunity to have children, so he wanted me to have them no matter what. It's an important conversation for people to have before they go down the IVF path. It's kind of like a prenup for fertility."

According to Kennelly, it's always possible to change your elections on an IVF contract form. You'll just need a formal amendment that's filed with the consent and agreement of both parties involved. "Take it one day at a time and don't rush into signing any agreements until you understand the legal ramifications," she says.

Cassie-Leigh S., who lives in the U.K. and also prefers to leave her last name anonymous for privacy, ended up divorcing her husband and wanting to do an IVF preservation with her new husband. England's NHS healthcare system wouldn't allow her to go through with the treatment while she still had frozen embryos created with her previous husband.

"I was upset when I initially had to destroy [the embryos from my previous marriage], but now I'm glad things happened the way they did," she says. "I definitely wouldn't want to have been tied to someone whom I no longer loved or respected."

Talebian counsels anyone undergoing IVF procedures and signing these contracts to consider their options very carefully. "Your reproductive doctors are not attorneys and may not be familiar with the legal ramifications of the contract in all states and cases," she says. "If you have legal questions, it's important to seek legal counsel for those."

"While these can be difficult decisions to make, they are important," Talebian continues. "Take your time, ask questions and make sure you have all the information you need to make the best decision possible."

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