13 Apr 2021 Pandemic-Related Surge in IVF Portends More Unused Embryo Custody Disputes  

The recent pandemic-related surge in in vitro fertilization will inevitably contribute to a growing number of legal disputes over the disposition of unused embryos. The best way to avoid what can be heart-wrenching conflict is a legally enforceable agreement that spells out clearly how embryos will be treated in the event of death, divorce or separation, who will have the right to decide, and who will (and will not) have parental rights and responsibilities with respect to any resulting children.

Fertility clinics across the U.S. are reporting surging rates of in vitro fertilization (IVF), as pandemic-confined individuals find themselves with more time and inclination to pursue parenthood using assisted reproduction technology, as reported recently by The New York Times, or to undertake fertility preservation measures, such as cryopreservation of eggs, sperm or embryos. The problem is, couples often are reluctant to consider that their union might not be lasting or to think about what would happen to any unused embryos created together were their relationship to end.

Fertility clinics and cryopreservation facilities routinely require intended parents to sign standard forms directing how any unused genetic material such as eggs, sperm or embryos will be used or disposed of in the event a couple separates. Although these forms have gotten more sophisticated and complete over time, they vary from facility to facility, and some are more complete and inclusive than others in covering potential scenarios.

Fertility Clinic Agreements May Be Challenged in Court

The best protection against future conflict over unused embryos is to enter into a legal agreement in which both parties agree upon their disposition and the rights and obligations of both parties are clearly stated. Unfortunately, as I told The New York Times, too many couples find themselves embroiled in a conflict fraught with emotional and financial consequences. In some cases, they may even risk being forced into parenthood unwillingly, should their former partner be allowed to bring any unused embryos to term.

We followed for several years the case of actress Sophia Vergara, whose former fiancé Nick Loeb challenged the 2013 clinic agreement (both of them signed) and attempted to gain custody of embryos they created together before separating. Loeb wanted to allow the embryos to be born via surrogate, against the wishes of Vergara, who had since married another man. After Loeb tried to move the case to Louisiana, where an as-yet untested 1986 law grants unborn embryos “judicial personhood,” the matter finally ended up back in Los Angeles Superior Court, where Vergara prevailed.

As shocking as it sounds for any court to force a person to procreate unwillingly, we reported in 2018 on a new Arizona law mandating that custody of any cryopreserved embryos be granted to the divorcing spouse who “intends to allow the in vitro human embryos to develop to birth”—even if there is an existing legal contract or medical consent form governing disposition of the embryos.

“In other words, the new law effectively renders any existing disposition agreement null and void,” I wrote. “It is a shocking, and possibly unconstitutional, infringement on a person’s right NOT to procreate.”

The Arizona law has not yet been tested in court. Another embryo custody dispute, Terrell v. Torres, is what spurred the (likely unconstitutional) legislation.

The clinic agreement, signed by both parties in 2014, stipulated that in the event of the couple’s separation, the couple would either mutually agree that one of them could use the embryos they created together via IVF to have children or donate the embryos for use by another couple.

After the couple’s divorce in 2017, the father was unwilling to have the embryos brought to term. At first, the family court ruled that the embryo disposition consent forms were clear and should be honored and that the embryos should be donated. The Appeals court reversed that decision, saying the forms were not clear and had internally conflicting provisions: one provision said mutual consent was required; and one provision said the parties agreed a court decree and/or settlement agreement will be presented to the Clinic directing use to a) achieve a pregnancy in one of us or b) donation to another couple for that purpose. The Appeals Court awarded the embryos to the mother, who wanted to use the embryos to attempt pregnancy.

Ultimately, the Arizona Supreme Court reversed the Court of Appeals and affirmed the family court, but for slightly different reasons—ruling that the initial provision requiring mutual consent must be given more weight, i.e., that the two intended parents agreed to one of two possible outcomes: either (1) reach an agreement between themselves, or (2) donate the embryos to another couple. Because they couldn’t agree between themselves, the court ordered the embryos be donated to another couple.

The Arizona Supreme Court ruling specifically pointed out that the new legislation was not retroactive and therefore did not apply to the Terrell v. Torres case. But this case raises several points—including the fact all three courts suggested that a clear written document (the clinic medical consent form both signed) should be honored, but more importantly, that the parties, their attorneys, and a bunch of judges in three different courts all had different interpretations of what the forms directed.

This case alone should make it crystal clear that medical consent forms are not enough: Parties looking for more certainty that their directive will be followed should absolutely enter into a more formal contractual arrangement in which, with legal counsel involved, everything is much more clearly spelled out than a typical clinic medical consent form.

Embryo Custody Disputes Increasingly Common

These are only a couple of high-profile examples of the conflicts that can arise with unused embryos, but, increasingly, disputes like these are winding up in court. The New York Times article cites family lawyer Monica Mazzei, who represents wealthy Silicon Valley clients: “It’s so common that now it’s a routine question that I have to ask: Is there any genetic material that we need to talk about?”

Of course, when undertaking the miraculous journey to become a parent via assisted reproduction, or to preserve one’s ability to have a future family together, no one wants to think that the worst may happen. But facing the unknowable now, and planning for all contingencies, is so much easier and less traumatic than being faced with such highly emotional questions in the midst of a painful separation or divorce. Talk about it; make those tough decisions now, in the best of times. Then, in consultation with your attorney, document your mutual understanding in a legal contract—and carry on with your plans.

For information about the legal issues surrounding unused embryos or embryo disposition agreements, contact our team of fertility law experts at IFLG.