Preparing for Divorce: Contracts about Frozen Embryos – Part 2

In Part 1, we talked about the best way to protect your choices about your frozen embryos before the in-vitro fertilization (IVF) process takes place, but what can you do if you’re already past that point? As IVF becomes a more common technology, more and more couples who froze embryos during IVF are getting divorced. Many of those couples didn’t make plans or sign agreements about the possibility of divorce. Others have changed their minds since their agreements were originally made or just didn’t pay attention to one more form in the flurry of paperwork they signed at the clinic.

Is There Case Law in North Carolina?

Unfortunately, North Carolina doesn’t have any statutes or published case law on what happens in those situations. We have to look to other states to get an idea of what will happen in cases like this. Approaches in other states fall into three categories: the pure contract approach, the balancing test, and contemporaneous consent. It is unclear where North Carolina will eventually fall on this spectrum, but for now these will likely be decided case by case depending on the judge who hears the case.

Pure contract states only look at the agreement that the parties made. In these states, the frozen embryos are treated as property and any agreements are treated like any other contract. The agreement can be written, but oral contracts have also been considered binding in some states. Courts in these states don’t consider current desires of the parties unless the parties consent to an alternative disposition of their embryos. If there is no contract in place in a pure contract state, then those courts will generally side with the party that doesn’t want the embryos implanted, although some more conservative states, most notably Arizona, will rule with the party that wants the embryo implanted to prevent the destruction of embryos.

Some states use a balancing test. While courts in these states tend to lean towards preventing implantation if one party is against it, these courts will consider a number of factors before making a decision. These factors can include religious or ethical convictions, infertility of a party, a party’s desire to or not to become a parent, the parties’ original intent as shown in an agreement, and who donated the genetic material to create the embryos. These factors are weighed against each other, and the Court determines which side has an overall stronger claim.

The final option is contemporary consent. These states usually enforce IVF contracts, but if one party has changed their mind and the parties no longer agree, the embryos must be stored until the parties come to a mutual agreement. The party who changed their mind is responsible for paying the storage costs of the embryos. If the parties never come to an agreement, the embryos are stored until either the clinic’s time limits for storage are reached, the embryos are no longer viable, or both parties pass. At that point, the embryos are disposed of.

Hopefully, as more couples go through the North Carolina courts, we will receive some guidance on what direction the state will choose when considering disagreements about frozen embryos. In the meantime, couples who didn’t sign an agreement when their frozen embryos were created should consider making one, as all courts at least consider the contents of an agreement when making decisions about frozen embryos in divorce cases. In divorces that are ongoing, it is likely that either the parties’ agreement or the wishes of the party that doesn’t want implantation will prevail, as that has been the case in the majority of states. In North Carolina, however, there are no guarantees yet.