Starting a family for some couples is not as straight forward as they would like. When couples struggle to conceive, many often turn to Assisted Reproductive Technology (ART), such as In-vitro Fertilization (IVF), to start or add to their family. When successful, the IVF process often creates a number of viable embryos for the couple which are then frozen and stored. Given the potential for future disputes, the couple will usually be required by their fertility clinic to complete and sign a consent and agreement form at the outset, setting out what their fertility clinic should do with any remaining embryos in the event of their separation or divorce. Despite this, however, couples continue to battle over the custody of their frozen embryos post-separation, and the U.S. has seen a vast increase in such cases in recent years.
A 2019 article in Family Law Magazine gives a brief overview of recent cases involving embryo custody, and how this particular topic remains a gray area within the law. In 2015, California saw its first embryo dispute in the case of Findley v. Lee. In this case, the wife sought custody of the frozen embryos post-divorce, arguing that the embryos were her last chance at having children. Her husband and was opposed to the use of the embryos. The case reached the San Francisco Superior Court where it was ultimately decided that the fertility clinic’s consent and agreement form signed by the parties at the commencement of their ART process, was an enforceable contract under California law. As a result, the wife could not use the frozen embryos after their divorce, as it would be in breach of their agreement with the fertility clinic.
According to the American Bar Association (ABA) this ruling remains consistent with other such embryo custody cases in New York, New Jersey, and Tennessee. However, three other jurisdictions have ruled in the wife’s favor where it was successfully argued that the embryos are the woman’s only remaining chance at having a family.
In 2018, the case of Rooks v. Rooks reached the Colorado Supreme Court. In this case, the couple were married and had three children through the IVF process. They also had an additional six viable embryos stored in their fertility clinic when they subsequently divorced. The couple’s written agreement with the fertility clinic failed to specify what should be done with the remaining embryos in the event of their separation or divorce. The wife’s position was that she wanted to preserve the stored embryos, as she wanted more children in the future, and the embryos were her only chance of achieving this. The husband did not want the embryos preserved and stated that he should not be forced into having more children against his will. The court’s opinion states that this case “presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse’s right to procreate directly against the other spouse’s equivalently important right to avoid procreation and because the fundamental liberty and privacy interests at stake are deeply personal and emotionally charged.” This is the issue at the crux of most disputes concerning frozen embryos in divorce, and there is no clear answer. The Colorado Supreme Court ruled that the case to be sent back to the trial court to once again weigh the parties’ interests in line with factors directed by the Supreme Court, and that is where the case currently stands.
It is not, however, always the wife seeking to preserve the embryo. In April 2019, the case of Bilbao v. Goodwin reached the Connecticut Supreme Court. This case involved a couple who had conceived a child though IVF but then subsequently divorced. One viable embryo remained, and the husband sought to preserve this embryo and for it to be adopted by another couple. The wife was opposed and asserted that she wanted the embryo discarded in line with the fertility clinic’s contract signed by the couple at the beginning of the IVF process. Their contract stated that, in the event of the couple’s separation, any remaining viable embryos would be discarded. The husband’s lawyer advanced the argument that the embryo was; “a human organism who should be protected”. This case gained much media attention and the attention of several pro-life organizations that sought to assist the husband in the case. The Connecticut Supreme Court’s recent decision on November 5, 2019, ruled in favor of the wife, noting that the clinic’s agreement signed by the parties was an enforceable contract and hence binding on the parties.
There is currently no U.S. federal law governing what is to be done with viable embryos in the event of a couple’s separation. As a result, such cases are determined by individual states who according to the ABA, are using a “patchwork of legislative and judicial approaches” to make their decisions. As can be seen from the cases referred to above, the decisions in such cases lack uniformity across state lines with many gray areas. What does, however, seem to be a trend in the U.S. case law, is that the fertility clinics’ consent and agreement forms signed by the parties at the outset of their treatment, is more often than not being deemed by the courts to be an enforceable contract.
As this area of the law continues to evolve, parties should seek the assistance of an informed family law attorney early on when faced with embryo custody questions in a separation or divorce.