The Battle Over Frozen Embryos

In a world of constantly changing and improving technology, more and more couples are battling it out over the disposition of their frozen embryos. While it may seem uncommon for couples to contemplate a break up while going through the process of preserving their ability to have children, the idea of forced parenthood and potential child support obligations that stem from being a parent make this issue an increasingly hot topic. Thus, the significance of the specific terms of the consent forms couples must sign prior to creating and freezing these embryos is becoming increasingly more relevant and when parties do not understand the legal ramifications of an informed consent or other agreement on the subject, couples may be inadvertently faced with potentially life-changing consequences despite their respective intentions.

In ruling on the disposition of frozen embryos, courts look to what, if any, contract exists which speaks to the parties’ intentions. Interestingly, both oral and written contracts can be considered and, unless modified or contradicted by later agreements, the parties’ first oral or written agreement on the subject will control the embryos’ disposition. Further, in the absence of explicit restrictions on use, courts may rule that a party can use the embryos without obtaining the consent of the other party.

Therefore, individuals not well-versed in contract law may be misled by these informed consent agreements, which often include provisions regarding the prohibition on use absent both parties’ consent at the time of intended implantation. Some may improperly rely on this language as a safeguard against the other party’s use of the embryos absent his or her consent. However, these interpreted safeguards are not cut and dry. For instance, there may also be language in the informed consent that states that the facility will abide by any other agreement between the parties with respect to the use of the embryos. This may include a prior oral or written contract between the parties which does not include limitations on use.

Given these complexities, it would be wise for people going through this process to consult with an attorney to resolve the issue of what would happen to the frozen embryos in the event of the couple’s separation or divorce. This can be spelled out in a separate contract such as a co-parenting agreement (where the sperm/egg donor would be involved in the child’s life inclusive of financial responsibilities) or a sperm/egg donor agreement (where the donor would have no financial obligations and waives his or her parental rights). The parties may also agree in writing that in the event the relationship breaks down, the embryos shall be either donated to another couple or destroyed.

These cases are highly fact dependent and the outcomes can vary drastically depending on the specific set of circumstances. Therefore, the decision to create and freeze embryos should not be taken lightly. In order to avoid any unintended consequences, a party and/or couple entering into such an agreement should seek out and carefully consider the advice of legal counsel well-versed in the areas of family and contract law.

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Sarah C. Miruzzi

About Sarah C. Miruzzi

Sarah C. Miruzzi is a family law attorney at Schiller DuCanto & Fleck LLP. Ms. Miruzzi has dedicated her studies and career to family law, and she recognizes that every family's needs are different. She prides herself on offering her clients practical solutions to extremely emotional and complex situations. Ms. Miruzzi works vehemently with her clients to identify and achieve their goals in order for them to confidently begin a new chapter of their lives.

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