What Happens to Embryos In a Divorce?

There are a lot of important decisions that need to be made during a divorce. Separating the lives of two people, particularly after a number of years spent together can be extremely complex. Decisions need to be made not just about children and property, but in regard to crucial family planning.

It is possible, today, for would-be parents considering having a child in the future to freeze embryos, or have embryos collected for the purpose of IVF. When these couples are divorced, decisions need to be made about what to do with an embryo.

Embryos, crucially, are not marital assets subject to equitable distribution, like a house or car. Rather, the concept of contract law needs to come into play.

Exploring the Concept of Embryo Ownership After Divorce

This is a particularly complex area to address in any case with your divorce mediator or divorce lawyer, as embryos could technically be considered the product of both parties. There are some previous cases which might highlight some useful information about this concept.

For instance, in a 1998 seminal case on the matter Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350, 1998 N.Y. LEXIS 1022., the highest court of the New York State stated that the disposition of pre-zygotes (embryos), does not counteract a woman’s rights regarding bodily integrity and privacy in the area of reproductive choice. Additionally, the pre-zygotes are not legally recognized as “persons” for constitutional purposes. This means the relevant enquiry in a divorce case becomes who should have “dispositional authority” of the embryos.

Agreements between gamete donors and progenitors regarding the disposition of pre-zygotes need to be presumed as binding and valid, according to the 1998 Kass v. Kass case. This means the contracts in place should help to determine the outcomes of any legal cases, including a divorce.

In the case mentioned above, the matter wasn’t an issue of matrimonial law, but contract law. The contract with the IVF program controlled. The court carefully considered a woman’s right to maintaining bodily integrity about reproductive choices, and privacy during the consideration of the case. In this case, the court also found the woman’s rights were not implicated before implantation.

Furthermore, where parties to an IVF procedure have determined the disposition of unused fertilized eggs, the agreement should control. The court found the IVF agreement at issue was clear to control and held that the party’s agreement provided for the donation of the pre-embryos into the IVF program controls.

Understanding Embryos in The Eyes of the Law

The issues surrounding embryos in legal cases has since been litigated again. In 2018, a case was brought in front of the First Department Appellate Division in New York Finkelstein v Finkelstein, 162 A.D.3d 401, 79 N.Y.S.3d 17, 2018 N.Y. App. Div. LEXIS 3894, 2018 NY Slip Op 03926, 2018 WL 2622105 (1 st Dept.). In this case, the first department drew attention to the agreement in place between the donors participating in an IVF program.  In the case of Kass v Kass, the court of appeals determined agreements between donors participating in IVF need to be enforced following the general rules of contract interpretation. In other words, the contract between the parties should be considered as the guiding information in-place to ensure the right decisions are made.

In the case of Finkelstein v Finkelstein, the couple attempted IVF using the services of the “New Hope Fertility Center” and signed an agreement as part of the process, with NHF. This contract included a provision which permitted both or one of the parties involved in the case to withdraw their consent to the process. When the couple filed for divorce, only a single embryo remained as part of the program. The husband, at this stage, chose to withdraw his consent.

The court examined the agreement in this case and determined that the husband had the right to revoke his consent for his wife to use the embryo to attempt to have a child.

This further highlights the fact that courts in general will uphold legal contractual agreements between the fertility center responsible for holding, and preserving embryos, and the couples in question. As such, it’s important for the people participating in IVF and similar programs in New York to be fully aware of the agreements they’re signing, and the clauses in place. It is important to understand the impact of a contract on the results of a divorce.

Dealing with Complex Divorce Decisions

As in any case regarding divorce or contract law, it’s important to seek out the right assistance from an experienced professional to protect you in case of a complex situation. New Yorkers, for instance, need to know the agreements they sign when going into a program involving embryos and IVF should likely control the outcome in the event of a divorce.

As such, it’s worth making sure you read the full contract carefully before beginning treatment, and it’s also a good idea for anyone involved with contract law and IVF to consider speaking to a lawyer before signing the agreement. If you’re ever unsure about what you’re agreeing to, a lawyer with knowledge of contract law may be able to help.

If you have any concerns about a divorce case, and how certain contracts and situations may be considered by the courts of New York, you can find additional guidance here on my other blog articles and this website. In the case you may want to discuss your own legal proceedings, you can reach out to my office, to get a spot on our calendar for a consultation. Up to the first 30 minutes of the consultation is free.