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Something Else to Consider About IVF

Contributed by Megan Simkins.

Couple pursues IVF. Couple breaks up. What happens to the fertilized embryos? The answer depends (mostly) on where you live.

In vitro fertilization (IVF) is a form of assisted reproductive technology which involves combining sperm and one or more eggs outside a woman’s body in a laboratory. The fertilized eggs undergo embryo culture for two to six days and then are implanted into the woman, hopefully leading to a successful pregnancy. A report released in 2017 by the U.S. Society of Assisted Reproductive Technology showed that 1 million babies were born in the United States between 1987 and 2015 through the use of IVF or other assisted reproductive technologies. Despite the steep cost (the average of a single IVF cycle could be $10,000-$15,000 depending on insurance and patient characteristics), an increasing number of couples pursue IVF to start or grow a family.

But something that many couples might not consider when going through the process of IVF is what happens to the embryos if they split up. If the couple is married and divorces, how do they decide who may keep the embryos? And if the embryos result in a successful pregnancy, does the ex-spouse have parental obligations to the child? A growing number of states are finding solutions to these and several other related problems.

There is great disparity of views in classifying fertilized embryos as property to be divided between spouses. Some states consider embryos marital property of a special character and may award them to both of the ex-spouses jointly. Meanwhile, under at least one state’s law, a viable pre-embryo resulting from IVF is a “juridical person” that may sue and be sued. Still, other states define frozen pre-embryos as personal property that is subject to just and proper division. Courts have utilized or combined aspects of three different analytical approaches: (1)

the contractual approach, (2) the contemporaneous mutual consent approach, and (3) the balancing approach.

It is generally agreed that if the divorced couple cannot agree on what to do with the embryos, they will simply continue to be stored in the lab, or they will be destroyed. Just as individuals have a constitutional right to procreate, they also have a right to not procreate. Therefore, if one of the partners after a divorce still wants to use the embryos to have a child, he or she cannot do so without the consent of the other partner and further cannot impose support obligations on the non-consenting spouse.

Another common view is if the couple does consider these potential issues and puts in writing what they plan to do, that agreement is a binding contract. Some courts, however, will not enforce these agreements as they believe it is against public policy to do so.

If you have questions, one step you can always take is to call our office and talk to one of our attorneys for advice.

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