Family planning is a common part of many marriages. The topic of children is probably something you and your partner have discussed at length before even getting married. You’re in agreement on how many kids you want to have – and when you want to have them.
Maybe you’ve decided to wait until you’re more settled in your careers before bringing kids into the equation. To help ensure that you could still have children further down the line, you decided to freeze your embryos to use later. This decision can give couples a lot of flexibility in their family planning – but it can also create serious complications if the couple decides to divorce before ever using the embryos.
What happens to your frozen embryos if you and your spouse part ways?
What is embryo freezing?
If a couple wants to have kids sometime in the future, they can collect and store their genetic material earlier in life, when their fertility is higher. Through a process called in vitro fertilization (IVF), one spouse’s egg is fertilized with the other spouse’s sperm. These embryos are then frozen and stored in a medical facility until the couple decides to use the embryos to start their family.
Why do frozen embryos make divorce especially complicated?
If you and your spouse decide to separate before using the embryos, things can get contentious if you and your ex don’t agree on what to do with them. Maybe one of you still wants to preserve them to start a family on your own, while the other no longer wants to have children.
In such cases, should the spouse who wants to start a family be given the embryos – leaving the other spouse to become a biological parent without their consent? Or should the embryos be destroyed – depriving one spouse of their chance to start a family?
Court decisions on this issue have been varied, sometimes ruling in favor of embryo preservation, other times in favor of destruction – and or sometimes leaving it up to the storage facility to decide what to do with the embryos.
Supreme Court ruling could make things more complicated still
The recent overturning of Roe v. Wade has the potential to affect IVF as well. Doctors who specialize in IVF are concerned that this ruling could result in a ban on the destruction of frozen embryos. Couples who choose not to use their frozen embryos may end up paying storage fines in perpetuity. The full scope of impacts from this decision remains to be seen.
What you can do
One thing that can help to eliminate conflict in the event of a divorce is to create a postnuptial agreement with your spouse. This is an agreement that is tailored to your unique circumstances. It can outline what happens to various assets if you separate.
If frozen embryos are involved, it’s especially important to discuss all potential eventualities with your spouse – and get on the same page about what will happen to them. Having a legally binding document that makes your shared wishes clear can help to avoid an intense legal battle in the future.