Who gets custody of stored frozen embryos after a breakup?

Assisted reproduction methods, such as in vitro fertilization (IVF), are complicated procedures for Minnesota couples with fertility issues. Many turn to assisted reproductive technologies (ART) after years of struggling to build their own family naturally without success.

In many cases, couples using IVF create more embryos than they need to create a successful pregnancy and are unsure what to do with additional embryos. Fertility clinics typically freeze the extra embryos and store them for potential use later. But what happens if a couple divorces or separates and disagrees about what to do with the stored embryos?

What happens to frozen embryos?

When couples undergo IVF, fertility clinics typically require the couple to complete and sign an embryo disposition agreement at the time the embryos are created that reflects the couple’s consensus at that time about how to handle any leftover embryos. Couples often don’t give this part of the process their full attention as the IVF process is incredibly stressful by itself. Furthermore, given the fact that they are trying to have a child together, it does not occur to them that they will ever separate. That is certainly not their intent at the time. This disposition agreement may offer several options for disposition of the embryos while the couple remains together, such as:

  • Freeze and store embryos for the couple’s future use or disposition at a cost
  • Donate the embryos to another couple undergoing IVF
  • Donate the embryos for research
  • Destroy the embryos

It will also offer options if the couple does separate (though they are usually drafted only with heterosexual couples in mind), such as:

  • Award the embryos to the woman
  • Award the embryos to the man
  • Donate the embryos for research
  • Destroy the embryos
  • Award the embryos pursuant to the subsequent agreement of the parties or court order

Couples who undergo IVF have already experienced significant stress and anxiety. If they choose to store and intend to use frozen embryos themselves, they may not want to think about what will happen if they split up before that happens. It simply seems counterintuitive to their current desire to have children together. Furthermore, the future award of the embryos to one party or the other may have unexpected or undesirable parentage and child support consequences, and clinics rarely advise couples to seek legal advice regarding those important issues prior to the couple completing the agreements. Thus, the couple may choose disposition options that will create significant legal problems between them later on.

How to address the legal concerns

Legal issues involving ART are complex because most states, including Minnesota, have no laws in place addressing these matters. The Supreme Court’s ruling in the U.S. Supreme Court’s decision in Dobbs v. Jackson, which overturned Roe v. Wade, has only made this issue more confusing.

When the award of embryos between a couple arises in a disputed dissolution of marriage proceeding, the issue becomes whether they are actually children or are more akin to property. Which view is taken by the court will affect the process and factors used in the court’s decision. Since the Supreme Court ruling, some state legislatures have been writing and considering so-called “personhood” laws that would classify embryos as people, further confusing this determination.

Regardless of your political or religious beliefs, embryos are not legally considered to be people in most states, including Minnesota. That’s why it is strongly advisable to consider these issues by consulting with an experienced attorney and putting a comprehensive contract in place before undergoing any IVF. Properly and thoughtfully addressing what happens to additional frozen embryos in advance can relieve anxiety no matter what happens to the relationship later on.

Assisted reproduction provides immeasurable joy to couples and individuals by helping them realize their dreams of having their own families. But getting there is stressful, and much of that comes from the legal concerns involved. That’s why experienced reproduction law guidance can help couples avoid complications and focus on the welcome addition to their family.