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What happens to your frozen embryos during a divorce?

More American couples are turning to in vitro fertilization (IVF) to get pregnant. Research suggests around 5 percent of American couples will try IVF to have a baby this year. However, some of these couples will have to face a tough decision about what to do with their frozen embryos if their marriage ends in divorce.

Most states across the nation consider embryos as property, however, the laws vary widely and are subject to change. As such, it can be wise to rely on preexisting third-party contracts and postnuptial agreements to determine what happens to the embryos, rather than leaving the matter up for debate in court. 

Third-party contracts

After you go through the IVF process, a storage facility will keep your embryos frozen. Most storage facilities require you to sign a consent form or contract concerning your frozen embryos. Generally, these forms offer vague details on what happens to your embryos in the event of a divorce or death. Will your embryos be destroyed, used by one of you or given to someone else?

However, because couples are excited to have a baby, some give little time to these future scenarios in these contracts. Under these circumstances, couples can create a postnuptial agreement to determine the future of their frozen embryos in the event of a split.

Postnuptial agreements

A postnuptial agreement is a legal contract that spouses enter into after they get married to determine how property and assets will be divided in the event of a divorce or separation.

Postnuptial agreements are the most common type of agreement when it comes to frozen embryos. Oftentimes, couples do not find out they will need to use IVF until after they marry. However, if you know you have infertility problems going into the marriage and will likely need to use IVF, a prenuptial agreement will work as well.

While you might think you and your husband can come to a mutual understanding about the future of your embryos during a divorce, many cases across the United States show what a complex issue it can be.

It is important that you document and review your third-party contract and postnuptial agreements concerning reproductive technology. Failure to do so could create serious issues about the future of your frozen embryos in the event of a divorce.

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