The last thing on a couples mind when they are going through an in vitro fertilization (IVF) procedure is divorce. But, unfortunately, sometimes couples find themselves in that situation down the road. If embryos were frozen and being stored for later use, what happens when the couple divorces? While divorce attorneys may think they are masters at dividing ‘marital properties’, what happens with embryos? That is one jointly derived asset that cannot be split.
The Wall Street Journal (12/20/2011, Ashby Jones) recently reported on such a case involving divorce and frozen embryos in Pennsylvania. According to the report, the couple froze some embryos in 2004, shortly before the woman underwent chemotherapy treatment for breast cancer. Three years later, the husband filed for divorce which isn’t finalized. The woman, Andrea Reiss, now wants to use the embryos to have children. Her husband, Bret Reber, says the embryos should be destroyed. In May, the Chester County Court of Common Pleas ruled for the woman, the first known case in which a court has ruled in favor of letting a woman use embryos over the wishes of her husband. The ruling, of course, is being appealed.
The issue at stake is that people have a right to change their minds versus nobody should be forced to become a parent against his or her wishes.
Most fertility clinics (including InVia) require couples starting IVF cycles to sign consents where the couple agrees in writing on what would happen to embryos in the event of divorce. The interesting fact is that whether or not these consents will hold up in court varies from state to state. In New York, these consents have generally been upheld. In other states, including Massachusetts and New Jersey, have generally ruled that the rights of the parent – typically the husband – should prevail over the person who wants to use the embryos, even when the parties agreed at the time of the fertilization to allow embryos to be used after a divorce. The situation apparently varies from state to state; the current situation on this matter in Illinois is unclear.
IVF has created a new frontier that is still highly controversial from legal, medical, and personal standpoints. Decisions on what should happen, in the event of a divorce, should be discussed and considered before going through IVF. At InVia Fertility Specialists, we do have you sign a consent form as to your wishes in cases of divorce. If either party, however, changes its position and sues, InVia will probably have to abide by the decision of the court.
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