You’ve always been a planner. You were 25 when you got married. You and your husband both had good jobs, and together you mapped out your professional goals and advancements up the ladder over the next decade.
Kids wouldn’t enter into the equation until you were 35 at least—but you both knew you wanted to start a family. So rather than letting your biological clock dictate your family planning, you decided to freeze your embryos.
Embryo freezing is a process by which a woman’s egg is fertilized by a man’s sperm through in vitro fertilization (IVF) and then frozen in a clinic for later use. The technology allows couples to procreate even at a stage in their lives when they are no longer fertile.
But what happens when a couple freezes their embryos and then divorces before using them? This question has created challenges for divorcing couples who don’t see eye to eye on the issue—and has often resulted in complex, drawn-out legal battles.
In dealing with issues of property division in a divorce, a court normally opts to give a piece of property—e.g., a house or car—to one spouse or the other. But when the property in question is genetic material shared by both parties, the court must make a difficult decision. In cases where one member of a divorcing couple wants to use the embryos to procreate while the other no longer wants any more children, court rulings have been inconsistent.
Sometimes courts decide to let the IVF clinic take possession of the embryos—and use them however they see fit. Other times, they decide to give the embryos to the partner who wants to procreate on their own—leaving the other partner with a biological child they have no legal connection to. Conversely, courts have also ruled in favor of the spouse who does not want to procreate—ordering the embryos to be destroyed.
When something as precious as your genetic material is at stake, you don’t want to leave its future to chance. When you and your spouse first decide to freeze your embryos, drafting a postnuptial agreement—a legal document dictating what will happen to the embryos in the event of your divorce, death or other life-changing circumstances—is critical. Taking this step can spare you considerable anguish down the road.