IVF – rights to embryos

By now, most women have heard of freezing eggs or embryos to preserve fertility. What a lot of women have not heard about is that having a frozen embryo may come with significant legal consequences, if you are not prepared.

IVF can be a lengthy and emotional process, and for some patients it takes months or years to achieve the desired outcome. There is a large percentage of couples that separate or divorce during a significantly shorter period of time, than it takes to complete the IVF process in many cases. Statistically speaking, it is possible that the relationship will fall apart before there is a viable pregnancy resulting from the IVF in which both partners participated in. This probability warrants being well prepared for. Questions such as which partner keeps the embryos in the event of divorce or separation, how long will embryos remain frozen, and others should be answered and agreed to before embarking on this process.

I would not advise my clients to go into a marriage without a premarital agreement. The IVF experience is not much different, and for a lot of women (and some men) it may be even more important than a marriage.

There are over a million frozen embryos estimated to be in storage facilities across the United States. This results in many conflicts and a need for resolving such disputes. This is true even when there is an executed agreement. A known case is between a famous actress Sophia Vergara and Nick Loeb who were in a relationship until 2014. The couple executed an agreement stipulating that neither party would use the embryos to create a child without consent of the other party. However, soon after the couple separated. Nick Loeb argued for a fundamental right to procreate and asserted his religious beliefs to advance his position. He even tried forum shopping and moving the case to a different jurisdiction. But the court ruled for Sophia Vergara, supporting the notion that written agreements related to the IVF procedures are enforceable.  

Before finalizing an agreement with the IVF clinic, it is worthwhile to consult an attorney to properly document options regarding who keeps the embryos in the event of a separation or divorce etc. Clarity is of utmost importance.

Semper Paratus / Always be prepared