Divorce 2021: Assets, Earnings . . . But Who Gets the Embryos?

Frozen embryos can survive and be viable for a very long time, certainly longer than many unions. In 2020 a child was born to a Tennessee couple from a donated embryo that had been frozen for 27 years. Science has moved faster than the law in this area, and states have taken divergent approaches in case law. So, as we wait, what can an advocate or family law practitioner do to best serve their client?

Ask Questions

Infertility is an intensely private matter, and you cannot assume a client will volunteer information about stored embryos. As a matter of course, practitioners should ensure that they determine, in the beginning of a case, whether the parties have frozen embryos, or other genetic material. Bear in mind that when a couple utilizes IVF, they sign consent forms which govern the disposition of unused embryos in the event they separate, divorce, or otherwise end their mutual relationship. Find out what consent forms were signed and what these forms provide.

Know the Existing Case Law on Disposition of Frozen Embryos

Because the law varies from state to state, it is important to first educate yourself on your state’s law. In each of the cases discussed below which resulted in published appellate decisions, one person wanted to use the embryos to bear children themselves or to donate embryos to another couple for the purpose of bearing children, and the other person did not. The parties formed these embryos as part of a mutual undertaking to allow them to bear a child and to raise that child, but the couple’s intimate relationship dissolved and they could no longer agree what to do with the embryos.

Constitutional Rights—Right to Privacy/Procreational Autonomy

The U.S. Supreme Court has included the right to procreation as part of the right to privacy (which the Court has found arises from the due process clause of the Fifth and Fourteenth Amendments). “If the right of privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

Davis v. Davis

In Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the first reported case to deal with a dispute over frozen human embryos, the Supreme Court of Tennessee held that in the absence of an express agreement between the parties, frozen embryos should be awarded based on a balancing of the parties’ interests. The question was: who was to have “custody” of seven frozen embryos left over from the Davis’ infertility treatments. The court found that each of the parties had an equal constitutional right to procreational autonomy governing their interest in the embryos.

[T]he right of procreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation . . .

842 S.W.2d at 601. Given these constitutional rights, the court held that, in the absence of an express agreement, the interests of the parties should be balanced in determining what to do with the frozen embryos. The court noted that ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than the use of the pre-embryos in question. The husband’s interests in avoiding procreation outweighed the wife’s interests in procreation.

In the twenty years after Davis v. Davis, every case decided by a court of record, using various legal theories, prevented the person wishing to use frozen embryos from doing so against the wishes of the (former) spouse or partner who did not want to have a child born against his or her wishes. Since Davis, courts have used essentially three different models, or a combination of models, to reach this result.

The Contract Approach

Eight cases from eight different states have used this approach to enforce what they deemed to be unambiguous provisions regarding disposition of the embryos in the IVF consent forms. The consent forms in each of these cases prevented one party from using the embryos to become pregnant against the wishes of the other party. In addition, cases using other approaches have stated, in dicta, that if there is an unambiguous agreement stating what is to be done with the frozen embryos, that agreement should be enforced.

However, the Connecticut Supreme Court, in Bilbao v. Goodwin, 217 A.3d 977 (Conn. 2019) pointed out what all the other contract approach cases appeared to deliberately avoid: all of those cases had contracts which prevented one party from forcing the other party to be a parent. The Connecticut Supreme Court held that the contract approach is the appropriate first step in determining the disposition of frozen embryos. Then the court pointed out:

…our decision applies to contracts that, if enforced, will not result in procreation. We do not decide whether the contractual approach applies in a scenario that would force one party to become a genetic parent against his or her wishes or, if the contractual approach does apply, whether such a contract would be unenforceable for other reasons, including public policy.

237 A.3d at 991. It is apparent, from any reading of the cases, that enforcing an agreement to discard or not use embryos is less constitutionally troubling than enforcing an agreement that requires someone to become a parent against their will.

Balancing of Interests

Several cases, including Davis v. Davis, held that in the absence of an unambiguous written agreement, the court should balance the interests of the parties to determine what should happen to the embryos. This approach has led to the only two U.S. cases which have ruled that a woman can use frozen embryos to have children, against the wishes of the man whose gametes were also used to create the embryos. In both of those cases, a compelling circumstance existed which was not present in the other cases. The women in both cases had been diagnosed with cancer, and the evidence presented was that they were unlikely to be able to have biological children from any means other than the unused, frozen embryos in dispute.

Public Policy and Other Considerations/Contemporaneous Mutual Consent

The Massachusetts Supreme Judicial Court and the Iowa Supreme Court have both reached determinations on the issue of frozen embryos flowing from the policy that the court will not force procreation on a person against their will. The Iowa Supreme Court invoked the principle of contemporaneous mutual consent, holding that cryopreserved embryos would be stored indefinitely until the parties reached an agreement about what to do with them. The court, in the case of In re Marriage of Witten, held that it was against public policy to enforce a prior agreement between a couple that no longer agreed about what to do with their 17 remaining embryos. The court explained that agreements between patients, donors, and fertility clinics are valid and serve a critical purpose. However, to the extent these agreements attempt to dictate future choices about embryo disposition, as between the couple these agreements are subject to the right of either of them to change their mind about disposition up to the point of use or destruction of the embryo.

Synthesizing State Cases

Leaving aside statutes in three states that have statutes (of dubious constitutionality) seeking to mandate what happens to frozen embryos in the event of a dispute, practitioners may wonder what general principles can be derived from the existing case law? If an agreement has been signed that prevents one party from using the embryos without the consent of the other party, that consent agreement will most likely be enforced. If, on the other hand, the IVF consent provides that one party may use the embryos without the consent of the other party, courts will search for a way not to enforce that agreement. If there is no unambiguous agreement, the interests of the parties will be balanced. In that event, it appears if the person who wants to use the embryos has other reasonable means of having genetic children, that person will probably not be allowed to use the embryos against the wishes of the other person.