By Amy Wallas Fox

For many couples, the only way to build their family is through assisted reproductive technologies (ART) including in vitro fertilization (IVF). With IVF, eggs are retrieved from a woman’s body and fertilized with sperm in the laboratory, creating embryos that are grown for several days outside the body. At that point, many embryos are cryopreserved prior to transfer to a woman’s uterus. What becomes of such embryos if they remain in storage at the time of progenitors’ divorce?

Reproductive clinics usually require couples to sign documents detailing disposition of their embryos in the event of their deaths and in the event of non-payment of storage fees. Clinics may also require agreement between the couple detailing what should happen if the couple divorces or one spouse is incapacitated while embryos are frozen. Options include procreation by one or both spouses, donation to medical research, or thaw and degeneration of the embryos. In California, New Jersey and Massachusetts it is required by statute that the fertility center mandate their patients to agree on disposition in a variety of circumstances, including divorce (See for example, California: Health and Safety Code 125315).

There have been several reported cases on the issue of what happens to embryos in controversy in divorce proceedings. In general, courts have followed specific agreements made by the progenitors prior to dissolution of marriage, including awarding embryos to the spouse designated by previous mutual agreement. However, if divorce was not contemplated in any consent form or agreement, courts have been hesitant to allow procreation by a former spouse against the other former spouse’s wishes (See Davis v. Davis (Tenn. 1992) 842 S.W.2d 588 and Kass v. Kass (N.Y. 1998) 696 N.E.2d 174). In fact, there is only one reported instance of a court allowing a former spouse to procreate using the genetic material of their former spouse over his objection. In it, the court used a balancing approach to award embryos to the wife when facts showed she was a cancer survivor who had no other means of procreation with her own genetic material (Reber v. Reiss (Pa. Super. Ct. 2012) 42 A.3d 1131). The parties in Reber v. Reiss had not agreed to any particular disposition in the event of death or divorce and their clinic had not required them to do so.

North Carolina does not have statutory guidance or reported cases on the issue of embryo disposition during equitable distribution. Therefore, attorneys should counsel their clients to enter into direct agreement with each other during marriage to clearly state their intent for disposition of embryos in the event of divorce, death or incapacity. Fertility clinics should also require consent forms be signed detailing embryo disposition in a variety of circumstances. And, to avoid confusion over intent, patients need to be sure that if they do sign a separate direct agreement with each other, that it is consistent with the consent forms on file with their medical provider.