Do you need a prenup to deal with frozen eggs?

July 23, 2015 | Blog, Prenuptial Agreements

Icon for author Brian Vertz Brian Vertz

Women who are contemplating IVF, ZIFT, surrogacy and other alternative reproductive techniques (ART), and their parenting partners, should seriously contemplate their need for a pre- or post-nuptial agreement or cohabitation agreement, in order to determine how the frozen embryos will be used, stored or disposed in the event of a divorce or breakup.  In vitro fertilization (IVF) is a fertility treatment in which sperm and eggs are combined in a lab, with the resulting pre-embryos being transferred to the woman’s uterus, where they grow into a baby.  Zygote intrafallopian transfer (ZIFT) is similar procedure involving the implantation of zygotes, or fertilized eggs that have begun to grow.  Some couples elect to freeze their embryos or eggs, in a process known as cryopreservation. Couples may choose these ART methods because of fertility issues or serious health conditions that interfere with childbearing.  Others hope to stop the biological clock, preserving their genetic material to improve their chances of conceiving a healthy baby later in life.  In each of these situations, men and women should consider what will happen with the frozen eggs or embryos if they are not used.

In 2012, the Pennsylvania Superior Court decided how to dispose frozen embryos after a husband and wife divorced, awarding the embryos to Wife to use at her discretion.  In that case, the wife was diagnosed breast cancer and had her fertilized pre-embryos frozen (while husband and wife were harmoniously married) before undergoing extensive surgery, radiation treatment, and chemotherapy.  Husband and wife subsequently divorced, and wife testified that her highest priority in life was to have children before she died, even if she were no longer married to the man who would be involuntarily fathering her children.  The Superior Court held that the women’s interest in having children was greater than the man’s interest in refraining.  Similar cases have come before the state supreme courts in Tennessee, New Jersey, Iowa, and Massachusetts.

Generally, couples who have their eggs or embryos frozen must sign contracts with their fertility center, which may or may not contain policies on the care, use and disposal of genetic materials.  Yet, too often these contracts are incomplete or difficult to enforce, lacking details on how embryos and eggs may be used after a divorce or breakup, and who will pay for their care.  A pre- or post-nuptial agreement can effectively deal with these future possibilities.  Some couples do not wish to destroy their eggs or pre-embryos for religious or moral reasons. Cryopreserved materials may be donated to other couples, given to medical research, or allowed to thaw without donating.  They also might become useful for stem-cell medical treatment in the future.  However the materials might be used or disposed, it is a decision that couples should make before they are faced with an adversarial divorce or breakup.  Call our lawyers if you think you might need an agreement to resolve these issues.

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