What Happens to Frozen Embryos After a Divorce?

When a couple cannot conceive naturally, they may elect to go through the process of in vitro fertilization (IVF). Although this process may provide a couple with the ability to have a child when they are together, treatment of the frozen embryos may become complicated when a couple divorces.

This month, a divorcing couple made headlines for their legal battle over embryos that were created through IVF during their marriage. In the case, one spouse testified against her husband, stating that their embryos are “priceless” and that she wanted full access to them in order to have a baby. The husband stated that he did not believe his spouse should have access to the embryos, which were created in 2010 when she was diagnosed with breast cancer.

Both members of the couple signed a directive agreeing to discard the embryos in the case that they divorce, however the wife is challenging the validity of the directive. A judge will review the case and listen to closing arguments this August before ruling. The decision has the potential to greatly impact how fertility clinics treat embryos of divorced couples.

Often, due to the physical, emotional and financial toll the IVF process may take on a couple, a fertility clinic will create multiple embryos which they freeze until future use. In the case of this couple, the embryos were frozen so that they may have a biological child after the wife’s cancer treatment, which would have made conceiving difficult or dangerous.

There is no federal standard for the treatment of frozen embryos in a divorce. Typical options for a couple in this situation include donating their embryos to an IVF clinic for research, giving the embryos to another couple or one spouse keeping the embryos for their own use.

If you and your spouse went through IVF and you would like more information on how your embryos may factor into your divorce, consult a skilled Long Island attorney with Bryan L. Salamone & Associates, P.C.