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    Cryopreserved embryos and divorce

    April 26, 2019

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    NP Trusts and Estates Editorial Team

    The use of IVF treatment has rapidly increased over the past decade, but the law has not developed a consistent legal precedent to address the disposition of embryos in the context of a divorce. Thoughtful planning can help couples ensure that their wishes are carried out as closely as possible.

    In 2013, at least 174,962 in vitro fertilization (IVF) treatment cycles were performed in the United States, which is a 55% increase over the number of IVF cycles performed just a decade before, making the planning for cryopreserved embryos relevant to many couples.

    Failure to develop an explicit plan regarding the disposition of embryos in the context of a divorce could lead to a legal battle over them, and subject the couple to the whims of an area of law that is still developing.

    What is the law regarding cryopreserved embryos?

    In the context of divorce, judges have often, but not exclusively, ruled in favor of the person who does not want the embryos used based on the position that nobody should be forced to become a parent.

    For example, in Findley v. Lee, a 2015 California Superior Court case, Mimi Lee and Stephen Findley underwent IVF while married because Mimi was diagnosed with cancer. As part of the process, they signed a “Consent and Agreement” form with the IVF clinic whereby they agreed to destroy the embryos upon a divorce. However, when the divorce was finalized and Mimi had not yet had children, she argued that the embryos provided her the final opportunity to have children. The judge found that the consent agreement signed with the clinic was a valid contract and upheld it.

    Quite conversely, an Arizona law that went into effect on July 1, 2018 provides that custody of disputed embryos must be given to the party who intends to “develop them to birth.” Similarly, cases in Illinois and Pennsylvania have resulted in the embryos being awarded to women who could not otherwise reproduce.

    In still other cases, the embryos at issue in a divorce have been ordered to be donated to research or to remain frozen until a time where there is mutual agreement.

    What disposition planning should be considered before starting IVF treatments?

    The couple should carefully review the consent form required by the IVF clinic to ensure that its provisions are consistent with their wishes, or planning as discussed below, regarding the disposition of cryopreserved embryos upon divorce, death or other reasons.

    If the consent form is not in line with their wishes or is silent, then the couple should look into other options for disposition planning.

    What can a couple do to plan for their cryopreserved embryos during their lifetimes?

    Given the lack of clear legal precedent, couples who have undergone IVF treatment should tell their attorney that they have frozen embryos that need to be considered. The attorney can then assist the couple with developing a plan for the disposition of the cryopreserved embryos in the case of divorce.

    Should the couple include the cryopreserved embryos in their estate plan as well?

    A couple should take their cryopreserved embryos into account in their estate plan. This will allow for a clear understanding by the survivor as well as the couple’s families as to the wishes surrounding the cryopreserved embryos.

    If a couple chooses to use a will or trust to provide for the disposition of embryos, the standard definitions used in the will or trust should be reviewed carefully to ensure that children or further issue conceived through IVF are properly defined and provided for in accordance with the clients’ wishes.

    By planning ahead, couples who have undergone IVF treatment can ensure that the disposition of their cryopreserved embryos is addressed based on their wishes rather than left to chance in a developing area of law.

    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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