Are You Considering In-Vitro Fertilization? Consider Seeing An Attorney First.

If you and your spouse suffer from fertility problems, in vitro fertilization (IVF) can offer a chance to become parents when everything else has failed. The problem is that couples planning IVF treatment are a lot like couples planning a wedding: they don't or can't envision a future where they're divorced. As a result, they fail to plan ahead for the future of any embryos that might be in frozen storage at the time of divorce. Here's how to properly plan ahead.

Don't Rely On The Forms Provided By The Fertility Clinic

Fertility clinics usually have couples who are freezing genetic material sign consent forms that address future questions like, "What happens if the couple dies?" or "Should the embryos be donated if considered abandoned in the future?" However, many of those forms are woefully inadequate and can leave splitting couples fighting for control of the embryos.

You can't rely on state law to decide the situation for you either: state laws haven't caught up to the scientific advances that are creating the problem and decisions are still being made case by case. Instead, consider consulting an attorney like those at Fleishman Law Office SC and having an agreement drawn up that tries to thoroughly anticipate future questions that could arise in the event of a divorce.

Consider Many Potential Issues

There are a number of potential future problems that can arise when frozen embryos are involved in a divorce proceeding. Here are things that should be considered when drawing up any agreement between you and your spouse:

1.) If you don't agree to destroy the eggs should you divorce, someone will have to continue to pay for the storage of the embryos, or they will eventually be considered abandoned by the fertility clinic and destroyed. Who will pay for storage? For how long?

2.) If one spouse gives the other custody (or "ownership") of the embryos, he or she will likely be unable to stop the custodial parent from doing whatever he or she wants with them. That includes:

  • destroying the embryos, even if it violates the other spouse's religious objections
  • donating the embryos, which means that someone else could give birth to and raise your biological children
  • implanting the embryos and using them to produce a child or children, whether or not the other parent still even wants children at all

If the embryos are used to produce children, those children will then become the subject of all of the usual concerns that surround children when their parents are divorced. That means that other questions have to be answered.

For example, if you agree that your husband can have the embryos if you divorce, and he decides to have them implanted in a surrogate and a child is produced, are you willing to give up custody and visitation rights? Or, would you still want to be involved in the child's upbringing?

In either case, you might have to pay child support because a state might not agree to enforce any agreement that seeks to circumvent child support laws.

Any divorce involving children is complicated - and it's worse when you're discussing children that might or might not ever be born. If you're planning IVF, talk to a family law attorney first so that you clearly understand your rights and responsibilities where the embryos are concerned. If you make the hard decisions now it could save you a lot of grief later.