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What happens to frozen embryos in a divorce?

January 7, 2019

Divorces can be extremely complicated, especially if there are issues involving assisted reproduction. One of the most complex issues for divorcing spouses in North Carolina surrounds the future of frozen embryos.

While storage facilities generally require couples to sign a consent form before beginning IVF, these documents do not always include information pertaining to the future of frozen embryos if a couple divorces or one of the spouses dies. The couple then must make the decision whether to keep the embryos frozen, donate them, use them or destroy them. Oftentimes, couples have differing opinions on the futures of the embryos, which has led to numerous lawsuits over the past few decades.

Currently, there is no federal law that determines what should happen to frozen embryos when a couple divorces. Therefore, it is up to the states to determine the future of frozen embryos on a case by case basis. Generally, courts will not force one spouse to become a parent if he or she does not want to. However, Arizona recently signed a law this summer that permits the spouse who “wants to have a baby” to use the embryos after a divorce, even if it is against the other spouse’s wishes.

While no couple plans to divorce, it is extremely important for couples considering in vitro fertilization to discuss the future of their frozen embryos should they split up. Additionally, the information used in consent forms should be clear and concise to avoid confusion later on. It can be beneficial to consult with an experienced surrogacy and assisted reproductive technology attorney to ensure your agreements are legally binding.

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