CSG Law Alert: Embryonic/IVF Consent Agreements Have Important Ramifications in Divorce Proceedings
Many couples with family-building goals consider working with a fertility clinic to create and preserve embryos with their own genetic material. Assisted reproductive technology – including various medical procedures constituting an in vitro fertilization (IVF) cycle – has led to the birth of more than 12 million children, according to international studies. Let’s imagine a married couple, John and Jane, who want to use Jane’s eggs and John’s sperm to create and store embryos at the clinic, and then have one or more of those embryos medically transferred into Jane’s uterus. Before those embryos are created – indeed, before the testing and egg retrievals and sperm collections occur – John and Jane will be required to sign a tripartite contract with their fertility clinic – often titled ‘Embryonic Cryopreservation Consent Agreement’ – along with dozens more medical and legal documents with equally cryptic titles.
Generally, the embryonic consent agreement (ECA) defines what will happen to the embryos once created, including where they will be stored in futuristic, cryogenic tanks filled with liquid nitrogen. Both Jane and John must sign the ECA in the form prepared and presented by the fertility clinic. If John and Jane are fortunate enough to create viable embryos, they will have them cryopreserved until some future date – sometimes days later, sometimes years – at which point the stored embryos are used for an attempted transfer to create a pregnancy, or are donated, or are destroyed.
Thus, each ECA has several “dispositional elections” that John and Jane must make – specifying what will happen to the embryos in certain contingencies. For example, John and Jane would each specify what will happen to the stored embryos upon the death of the other. And both John and Jane would need to specify (in unison) what will happen to the stored embryos in the event that their relationship ends by divorce or voluntary dissolution. This section is so legally consequential that the ECAs often require each intended parent to individually initial or sign each election, in addition to signing the entire contract.
The ECA is a three-party contract, but two of the parties (John and Jane) must agree to the same dispositional elections before the third party (clinic) can provide medical services. At this stage, everyone’s interests are aligned – John and Jane want to have a baby, and the clinic seeks to provide the medical services to support that goal. Couples are understandably signing whatever documents the fertility clinic presents, often in the clinic itself, minutes before a medical procedure with enormous stakes. In this setting, neither John nor Jane is possibly thinking about how the ECA may impact them if their interests as a couple are not aligned in the future.
Yesteryear’s ECA election for a hypothetical divorce can feel intolerable when the actual divorce occurs. Not surprisingly, the intended parents’ collective goals when signing an ECA – inspired by a mutual desire to create or expand a family – are turned upside down when the same two people contemplate divorce and its attendant financial and emotional misery. While state laws vary significantly on this issue, and while stored embryos’ classification in the family law context (between personhood and property) is evolving, ECAs are generally enforced (if disputed) in divorce proceedings. Both New York’s and New Jersey’s highest state courts have affirmed this position over the past quarter century. Thus, stored embryos can be regarded as assets of the marital estate, subject to equitable distribution; the distribution of those embryos is governed by the ECA’s dispositional election for divorce.
But spouses looking to avoid ECA enforcement are extremely motivated, given the stakes. Perhaps John and Jane selected a divorce election of ‘destroy all embryos’ in their ECA – but after years of failed embryo transfers while suffering an abusive marriage, Jane seeks to void the ECA’s provision since the remaining stored embryos reflect her best chance to bring a biologically related child into the world. Or perhaps John and Jane selected ‘split the remaining embryos equally between us’ in their ECA, and subsequently had two children. John or Jane may now wish to prevent the other from using the couples’ stored embryos in a new pregnancy, or even from donating those embryos. Whichever spouse seeks to avoid enforcement will likely point to broader, constitutional arguments to render the ECA void. For example, the Liberty Clause of the Fourteenth Amendment to the federal Constitution has been interpreted to create a right to have children and a right to not have children. The fertility clinic is often subpoenaed by the spouse seeking to avoid enforcement, creating legal tension that impacts or ends a longstanding physician-patient relationship.
Intended parents looking to avail themselves of the miracle of IVF in their family planning are correctly focused on their bond and unity when signing an ECA. Fertility clinics are not going to encourage their patients to consult with individual counsel, especially when ECAs are sometimes signed bedside. But married couples and soon-to-be-married couples who are considering working with a fertility clinic may benefit from consulting (in advance) with a family law or health law attorney familiar with their state’s laws specific to ECA enforcement. Likewise, married individuals who previously signed a ECA and are now contemplating divorce would benefit from consultation with a knowledgeable family law attorney in considering how the ECA may impact the other disputed issues in a potential divorce.