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Frozen Embryos in Divorce (2024)

Frozen Embryos and Divorce – ConnecticutAttorney Kevin Brown

Starting a family is not always easy, however wonderous advances in technology, like in vitro fertilization (“IVF”), have opened a wide range of options for those couples having trouble conceiving and/or reaching a full term birth.  Broadly, treatments of this nature are referred to as “Assisted Reproductive Technology” (“ART”).

The use of ART and IVF procedures have gained broad market acceptance as they have become more reliable over the last five decades.

Industry experts and Medical/Health watchdog associations indicate that more than 400,000 babies from 1.6 million ART cycles are currently born around the world each year.

Notwithstanding all the wonderful positive outcomes (the “miracles” of successful birth for those that faced difficulties with fertilization and pregnancy), ART and IVF have opened a virtual Pandora’s Box of complex legal issues related to disputes revolving around the disposition of frozen embryos stored at embryo “banking facilities” in situations involving a divorce or the death of a spouse.

Many states saw an increase in IVF during Covid with higher fertility success rates, resulting in an estimated one million frozen embryos left unused and still in storage today.

As is always the case with a rapid proliferation of new technologies, state and federal laws, adjudicated case law and appeals (legal precedent) is lagging behind on foundational questions.                                                                                                                                                                          Attorney Kevin C. Brown

The practical reality of the situation is that the processes now shaping public policy; development and enaction of legislation into law/statute; and, the adjudication of legal “tests” to expand guidance (precedent) all just take time and require substantial financial resource.

 

Key questions surrounding IVF disputes (examples):

  • The validity and enforceability of IVF and frozen embryo storage contracts?;
  • And, to the extent the law views control and access to a frozen embryo as a property right, whose rights prevail in a dispute over access/control?;  What factors must be considered by the court and what “tests” must be met in making such judicial determinations?
  • Can a parent terminate their parental rights?  And, if so what does that really mean?
  • Who is considered a parent? (strict biological definitions and constructed definitions by statute) ;
  • Will a non-participating parent be held responsible for Child Support (as this universally considered the right of the child)?
  • How are downstream privacy rights protected?
  • What happens to the “Grandparents’ Rights” (e.g. visitation) of the parents related of the non-participant parent (the parent favoring destruction of the embryo)?
  • Where do the right of an individual or basic human rights begin and end with respect to IVF?

 

https://youtu.be/0n_l6hsZtjU

In Vitro Fertilization Market

Forecast 2022 to 2032 – Future Market Insights, Inc.

 

In Vitro Fertilization Market Value 2026:                                                                                    USD 990 Million
In Vitro Fertilization Market Projected Value 2032:                                                                                      USD 1.6 Billion
In Vitro Fertilization Market Forecast CAGR (2022 to 2032):                                                                                               9.0%

 

Growth Factors in the ART and IVF market

  • Advancements in technology, including new procedures, equipment, the quality of the chemicals, compounds, reagents, instruments,and plasticware;
  • Proliferation of IVF and embryo “banking” facilities and increased capital investment;
  • Expanded insurance coverage, refined eligibility requirements. and more reliable reimbursement for related procedures;
  • Increasing prevalence of infertility in the general population;
  • Greater consumer and social acceptance of these procedures and improvement in success rates;

Embryo storage (IVF) contracts and enforceability in divorce disputes

Most fertility clinics require parties to sign a large stack of consent forms at the onset of the IVF process, which include checking off certain boxes indicating what the parties agree to concerning  the storage and disposition of the frozen embryos in the  event of death or a divorce. While reproductive technology has accelerated, both the laws and industry practices in the U.S lag behind.

The U.S. has seen a rise in divorce cases where the disposition of frozen embryos is disputed, regardless of the fertility forms couples had originally signed.

Key enforceability questions:

  • Are the contracting parties being given enough information about the downstream implications of these contracts? (Are proper disclosures being made/offered?)
  • Are the parties given ample opportunity to consult with an attorney prior to execution of the contract?
  • Do form contracts (with check boxes) support or substantiate “informed consent”? (e.g. with respect to procedural risks, and disposition policies of the facility)
  • Do the parties fully understand these contracts and the potential downstream issues?

In absence of formal legislative guidance and more guidance from the courts, there are steps people can take to avoid the difficult decisions and/or disputes being played out in family, appellate and even supreme courts today.

Options for the disposition of frozen embryos and divorce

If parties choose to freeze and store any remaining embryos they created, most fertility clinics require parties to sign forms to specify the ownership and/or disposition of the embryos being held in storage, at the time they are created (the onset of the process). In the event of death or a divorce, parties must select if the frozen embryos shall be:

  • Awarded to the Wife or Party A;
  • Awarded to the Husband or Party B;
  • Donated to research;
  • Donated for adoption;
  • Disposed of (destroyed);

Unfortunately, these forms are often:

(i) Misleading (most couples don’t know if they will produce enough viable embryos to keep in storage at the time they sign these documents);

(ii) Not well thought through (parties normally don’t discuss the worst cases scenarios when trying to start a family through IVF); and,

(iii) Sometimes non-existent (couples who went through IVF fifteen years ago probably weren’t presented with forms to determine the ownership or disposition of their embryos if held in storage because the technology was so new);

 

Who gets custody of frozen embryos in divorce involving IVF?

To date, there is only one Connecticut Statute regarding custody of frozen embryos in a divorce. However, there is no definitive law in place yet and courts may use their discretion with various approaches.

In the matter of Jessica Bilbao v. Timothy R. Goodwin (SC 20078), the Plaintiff-Wife filed for a dissolution of marriage action (divorce) against the Defendant-Husband in the Connecticut Superior Court, Judicial District of Hartford in 2016.

The parties had one child through in vitro fertilization (IVF) and agreed to store their remaining embryos cryogenically at the fertility clinic. The parties signed an agreement with the clinic stating that if the parties were to divorce, the clinic shall discard the frozen embryos.

During the divorce, the Plaintiff wished to adhere to the agreement and discard the frozen embryos, while the Defendant objected and wanted to:

(i) Keep the embryos in the event of the parties’ reconciliation; or,

(ii) Donate the embryos to another IVF couple.

The trial court ruled that the fertility clinic agreement lacked consideration and therefore could was not enforceable. The trial court used the “balancing approach” and determined that the Plaintiff’s wishes to destroy the embryos would prevail because the Defendant had a reasonable possibility to have children by other means.

In this case the trial court took notice that the Defendant already had six children and the Plaintiff did not want more children or the embryos being donated to strangers.

The Defendant appeals, claiming that the trial court was erroneous for applying the balancing approach and considering the embryos as marital property, without considering the Defendant’s parental rights with respect to the frozen embryos.

The Plaintiff disagreed and argued in the Connecticut Supreme Court that the parties signed an enforceable contract for the disposition of the embryos with the fertility clinic – which the supreme court agreed with and overturned the lower courts’ rulings.

How do state laws (beyond Connecticut) address frozen embryo divorce disputes involving IVF?

Law governing the custody or disposition of frozen embryos in a divorce can vary from state to state. However, in most states, courts often use one of the following approaches to determine the disposition of an embryo in a divorce:

  • Contractual Approach: Courts make their decision based on the fertility clinic documents signed by the parties at the time the embryos were created or refer to any other written agreement signed by the parties regarding the embryos. (Is the IVF storage agreement valid and enforceable?)
  • Balancing Approach: Courts balance the parties’ interests in using or disposing of the frozen embryos, most often when there are extreme circumstances or no preexisting agreement in place. (Are there any extraordinary factors that favor the balance of interests in either direction?)
  • Contemporaneous Mutual Consent Approach: Courts presume an equality between the parties and allow either party to change their mind, despite any previous agreement and therefore make no determination as to the ownership or disposition of the frozen embryos. Under this approach, nothing can be done with embryos until both parties consent to a disposition. (Wherein the court considers this right as being so important that an individuals right to change their mind should be preserved) 

 

Are frozen embryos considered people or property in a divorce?

Generally, frozen embryos are considered one of the following:

  • Marital property: awarded to the party against implantation – which favors a party opposed to involuntary parenthood, under the reasoning that the opposing party did not consent to being a parent, they only consented to creating/storing the embryos.
  • Similar to humans: awarded to the party in favor of implantation – under the reasoning that the opposing party consented to being a parent when they signed up for IFV and the frozen embryos are considered to have something resembling human rights.
  • Property of special character: courts reason that they do not have jurisdiction to make a determination because they do not view a frozen embryo as property or akin to a human with rights, and put it upon the parties to either come to an agreement or leave the embryos in storage as “status quo.”

 

     Frozen Embryos and In-Vitro Fertilization – Notable Divorce cases in the United States

 

Year

 

State/Court

 Case

 Approach

  Valid Contract?

 Enforceable?

 Disposition of Embryos

1992

TN Supreme

Davis v. Davis

Balancing

No

No

To the ex-H, favored right to not procreate

 1998

 

NY Court of Appeals

Kass v. Kass Contractual Yes Yes Donated to research

 2000

 

MA Supreme

AZ v. BZ Contemporaneous Mutual Consent No No

To the ex-H, favored right to not procreate

2001

NJ Supreme JB v. MB Contemporaneous Mutual Consent No No

To the ex-W, favored right to not procreate

2002

WA Supreme Litowitz v. Litowitz Contractual Yes Yes

To be disposed of

2003

IA Supreme In re Marriage of Witten Contemporaneous Mutual Consent Yes

Not Signed

No To remain frozen until parties agree

2006

TX Supreme Roman v. Roman Contractual Yes Yes To the ex-H, favored right to not procreate
2008 OR Appellate In re Marriage of Dahl & Angle Contractual Yes Yes

To the ex-W, favored right to not procreate

 2012

PA Superior Reber v. Reiss Balancing No No To the ex-W, favored her right to procreate because she couldn’t otherwise
2016 CA Superior Findley v. Lee Contractual Yes Yes

To the ex-H, favored right to not procreate

2019

CT Supreme Bilboa v. Goodwin Contractual Yes Yes

To the ex-W, favored right to not procreate

Are Frozen Embryos considered to have human or individual rights? (Updated 2/22/2024)

In February 2024, the Alabama Supreme Court held an IVF Clinic responsible for the wrongful death resulting from a storage facility accident and the inadvertent destruction of frozen embryos and the resultant civil liability by reversing a trial court decision.

The Alabama Supreme ruling is a pivotal milestone for IVF as it is the first time (at the state level of judicial review) where human and individual rights have been applied to frozen embryos by a court.  And while the Alabama Supreme Court’s ruling was, in fact, very narrow, the idea of personhood before birth in the context of IVF has opened the door to a wide range of “essential” questions surrounding the ongoing legal status of a frozen embryos (and related disputes) and put the discussion on par with the both the state specific and national debates on abortion.

Note, however, the ruling did not make IVF illegal and the court did not prohibit the freezing of embryos.

Notwithstanding, the ruling certainly raises new concerns about future for ART and IVF and the accessibility of service as the door has now been opened to civil and criminal liability. The concerns being that this ruling could trigger a broader anti-abortion effort to recognize a fetus in the womb or even a frozen embryo as a person under federal constitutional law.

Hold your breath. This is just the beginning. Even more profound questions should be expected — like whether an ex-spouse who was against implantation can be held financially responsible to pay Child Support? — as Child Support is considered to be “the right of the child” in Connecticut.

Can my spouse challenge the fertility forms (contracts) in a divorce?

This is one of the most current compelling issues being played out in various courts today.  Not all states’ courts will simply enforce the agreement between the parties.

Despite the existence of a fertility form or agreement regarding the disposition of the embryos, if the court awards the embryos to the parent in favor of implantation, what are the consequences for the party against implantation? Is that party a parent with rights to custody and/or a duty to pay child support? And in return, if the court awards the embryos to the parent not in favor of implantation, what are the defenses for a party seeking to keep or use the embryos?  Little or no judicial guidance currently exists (across all 50 States).

Unfortunately, in these scenarios parties will need to litigate the issue in their states’ courts.

What can be done to avoid disputes over frozen embryos in divorce?

In absence of formal legislative guidance (which leaves a grey area), there are steps parties can take to avoid litigation regarding custody of their frozen embryos in a divorce. At Needle | Cuda, we recommend parties contemplating IVF or parties who have frozen embryos in storage, consider either a prenuptial or postnuptial agreement.

This type of agreement can outline the terms for ownership or disposition of the parties’ frozen embryos (or potential embryos), in addition to the forms signed at the fertility clinic. Such an agreement may be more likely to be enforced in a later divorce action, rather than the fertility clinic’s form contract. That way parties come to a thoughtful, informed decision and there is a more binding agreement in place, should the marriage result in a divorce.

Should couples pursuing IVF procedures and contracting frozen embryo storage consider either a prenuptial or postnuptial agreement?

Well, it certainly can’t hurt.

The benefit of a prenuptial agreement is that it makes clear the ownership of the biological materials captured and stored at IVF “banking” facilities and clinics.   The parties can also document agreement ahead of time as to whether the ownership is affected if the eggs or sperm are fertilized.

Statutes, “contract” law, and state level judicial precedent for Prenuptial and Postnuptial Agreements (as to validity and enforcement issues) sit on more well established ground as compared to IVF contracts.

When Prenuptial and Postnuptial agreements are consummated, the Parties are each typically represented by attorneys (or Review Counsel has been consulted), judges canvass each Party about their individual understanding of the content of the agreements. They also confirm that agreements have been made with full disclosures, legal representation, and with free will.  And lastly, these agreements are certified by the court and entered as formal court orders.

So, where does this leave us…?

Parties in divorce disputes with interests tied to Frozen Embryos are left with a conundrum – real life questions with either partial legal answers or no answers at all.  What’s worse is that there is no roadmap. The journey ahead will be long, inefficient, and expensive for those who travel it — in the absence of parties in dispute reaching mutual agreement as to the disposition of their frozen embryos post-divorce.

Hold your breath.  The rules are only just beginning to take shape.  Even more profound questions should be expected on the road ahead — like whether an ex-spouse who was against implantation can be held financially responsible to pay Child Support? — as this is considered to be “the right of the child” in Connecticut.

Contact a Connecticut attorney regarding disputes over frozen embryo in divorce

Needle | Cuda in Westport handles high net worth divorce cases, in addition to complex custody matters for parties throughout Connecticut. To schedule a consultation regarding your frozen embryo divorce case, please call (203) 557-9500 or visit our website here.

Updates, related information and important links:

Brief of Appellees, Case No. SC-2022-0515 in the Supreme Court of Alabama

Opinion: The twisted irony in Alabama’s court decision on embryos (CNN)

Alabama court rules frozen embryos are children, chilling IVF advocates

Alabama court rules frozen embryos are children, chilling IVF advocates  (USA Today)

Alabama frozen embryo ruling will limit fertility treatment access, critics say (FOX News)

 

 

 

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