Complex property division in divorces often involves multiple high-value properties, such as businesses and vacation homes. However, there are uncommon assets courts have to distribute every now and then, one of which is frozen embryos. Fertility preservation, such as embryo cryopreservation, is slowly becoming a trend among couples these days. But what happens to the frozen embryos if spouses decide to divorce?
If there is a fertility contract
It is a common practice among fertility clinics and doctors to have their clients sign a contract before proceeding with the preservation process. The agreement usually includes what will happen to the frozen embryos if the spouses divorce. They have options to destroy or donate the embryos if they part ways. However, they can also agree to elect a spouse as the owner. In this case, the court can follow the fertility agreement and award the frozen embryo to the owner on paper.
However, each state may follow different rules in enforcing this contract. Some may not even consider it valid.
The court makes the final decision
A few states, like Arizona, have passed laws specifically addressing the property division of frozen embryos. However, other states, including Kentucky, currently have no existing laws on the matter. Given the nature of the property, it is likely that the court will decide on its own, weighing factors such as ethics, morality and the preferences and current circumstances of the divorcing parties.
For instance, if one party wants to keep the embryos while the other does not, the court may allow one party to keep them but release the other from all parental rights and responsibilities. In other cases, judges may rule in favor of destroying the embryos. It all depends on each case’s circumstances.
This topic is relatively new in court and many rulings related to this matter are inconsistent across states. Having an agreement can somehow make the court’s decision easier. However, at the end of the day, the judge’s decision will prevail.