Embryos, IVF and Divorce. What You Need to Think About Before Your IVF Cycle Starts.
June 16, 2015 | By: Liz
Frozen embryos have been in the news quite a bit recently. There is the Sofia Vergara/Nick Loeb embryo battle. I don’t think anyone could have missed the media coverage on that story. Then there is a case in Illinois involving embryos created before a woman, Karla, underwent chemo therapy and which embryos represent her last chance to have a genetic child. The man, Jacob, who agreed to help her create the embryos (and allowed his sperm to be used for purposes of fertilizing her eggs) no longer wants her to use the embryos to have a genetic child. This case also is getting a lot of media attention. And there are a host of other cases which have not been talked about in the media but which are winding their way through the court system. There is a lot to learn from these cases and a lot to think about. And I mean think about NOW, before your IVF cycle starts, and cerainly before you break-up, separate, or get divorced. I know none of us want to think about unpleasant things when we are trying to get pregnant, but this is one of those times when advance planning might be a better idea than telling yourself something like this would never happen to you. Assisted Reproductive Technology (ART) is a lot to deal with no matter what but, as in most cases, ignoring this issue is likely to make things worse, not better.
I remember that when I was presented with consent forms at my IVF Clinic, and I tried to read and digest what the forms meant, the last thing I cared about was what would happen to my embryos at some random point in the future. I ignored issues that I found unpleasant. If it didn’t involve a potential positive pregnancy test, my head went deep into the sand. However, as I did more and more cycles, I started to care more about my responses on the forms. To be honest, it was really only because I became more concerned about what would be happening to “my” embryos under various circumstances which did not involve my uterus. As I became more familiar with the process of ART and IVF and more invested in the outcome, I started to think of the embryos less in the abstract; the embryos became more a part of me and thus I became more invested in how they might be “used”, other than to get me pregnant. But never in a million years did I think about what would happen to frozen embryos if my DH and I got divorced. For that matter, none of the health professionals at my clinic discussed issues regarding the disposition of these embryos in the event we got divorced. Perhaps this issue wasn’t on the radar way back in the dark ages of infertility treatment (when I did my IVF cycles), but it is on the radar now and people are definitely fighting over who can use the embryos after they separate or get divorced.
In retrospect — and hindsight really is 20/20 — I know that if I had separated or divorced with frozen embryos that I would have fought to the proverbial death to be able to use those embryos, regardless of what anyone else might have thought or felt about the embryos. So I get why people fight over this. And as a lawyer helping people understand the legal issues involved in assisted reproduction, one of my jobs is to educate people about what can happen if they later disagree about the who, when and where of embryo disposition.
The cases which have been litigated and those which are winding their way through the court system, unfortunately are inconsistent in their decisions. That is, some courts enforce consent forms, some enforce oral agreements, some enforce the rights of the person who doesn’t want the embryos used, and some courts might be said to have enforced the rights of the embryo (IF embryos can be said to have rights, and I am not going down THAT path in THIS blog). So what can we do? We can read those consent forms for one thing. We also can discuss this issue with our partners.
Reproductive law has one common theme, it looks to the parties’ intent at the time ART is used to create an embryo to decide who is supposed to be a parent, and under what circumstances the embryos can be used by those parents if they are no longer in a relationship. If a court is going to be looking for evidence of our intent about whether we can use a frozen embryo against the wishes of our partner after we break-up, then it behooves us to figure out what that intent is. Sadly most of us do not have the financial resources to fight a battle like Sofia Vergara’s. But in our minds and hearts, we all have as much at stake as do Karla and Jacob in the Illinois case. And while all of us might want a baby now, Sofia Vergara and Jacob (just to name two) provide ample evidence that what “all of us” want now may not be what we “all” want in the future.
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