What is IVF and why is it such a legal hot topic?
In-vitro fertilization (IVF) is an extraordinary treatment that has helped many married couples struggling with infertility have children when they otherwise couldn’t. During the IVF process, many embryos are created. Often, there are more embryos created than needed for a child to be born through IVF. Many couples may choose to freeze and store these embryos after IVF.
What many may not realize, however, is the complicated legal questions that arise when a married couple with frozen embryos divorces. The future of frozen embryos after the marriage has ended and, occasionally, the parentage of children born through IVF, can be disputed in court during divorce.
Throughout the IVF process, a couple signs a multitude of paperwork regarding consent to procreate and, perhaps, what should be done with the frozen embryos in the future. However, previous Massachusetts cases have shown that these consent forms are not always as legally binding during divorce as they seem.
Let’s discuss how Massachusetts courts decide the custody of frozen embryos during divorce. We’ll also look at another case that determined whether consent during IVF can affect parentage.
How is the custody of frozen embryos determined during divorce?
To answer this question, we have to talk about how embryos are legally defined. In Massachusetts, state law doesn’t clearly define whether frozen embryos are considered property or people. In divorce cases, embryos are usually considered as being a unique in-between; they’re more than property, but less than legal persons. Because of this, custody of frozen embryos is not decided in the same way as custody of children during divorce. The legal rules that govern frozen embryo custody are usually decided by how judges have ruled in past cases, or case law, as well as the judge’s discretion.
What does the law say?
Case law in Massachusetts dictates that judges use a legal approach called the contemporaneous mutual consent approach when deciding the custody of frozen embryos. This was decided by a landmark case settled in Massachusetts’ Supreme Judicial Court, A.Z vs. B.Z. In this case, a couple divorced years after they had conceived a child through IVF. After every treatment, the remaining embryos were frozen for potential future use. Before every IVF attempt, the couple had signed consent forms regarding what could be done with the remaining frozen embryos, with the final consent form showing that they agreed to the embryos being returned to the wife for implantation.
During the divorce, the husband attempted to file a permanent injunction that would prevent the wife from accessing the frozen embryos. Despite what was agreed upon in the consent forms, the court refused to enforce an agreement that would force one of the parties to become a parent against his or her will. Because the husband ultimately did not give consent to wife’s retrieval and use of the frozen embryos, the court prioritized the husband’s right to not procreate over the wife’s rights and wishes.
What was the long-term outcome?
Because the court cannot enforce “forced procreation,” both parties need to agree on the future of the frozen embryos during the actual moment they are making the decision to implant, donate, or discard the embryos rather than before the IVF treatment begins. This is ultimately what the contemporaneous mutual consent approach has become.
Because of this approach, most divorcing couples agree on the future of their frozen embryos during the divorce process and incorporate their decision into their separation agreement. Embryos will remain frozen until an agreement has been reached.
Does consent during IVF establish legal parentage?
The Massachusetts Appeals Court explored this question in another case, Okoli v. Okoli.
This case concerns a couple that went through several unsuccessful IVF attempts during their marriage. The couple later legally separated, intending to divorce in the future. During their separation, the wife sought consent from the husband to attempt IVF again. Although the husband initially refused, the couple eventually signed an agreement before the IVF treatment, formalizing the husband’s consent while also stating that the husband had no financial obligation to the treatment and its results. The wife later sought child support for the twins that were born from that IVF treatment. During their divorce proceeding, the husband claimed that this was a breach of contract.
During these divorce proceedings, this case made headlines due to the wife allegedly coercing the husband into giving his consent by threatening to withdraw her support for his U.S. visa application. In court, the husband argued that he gave consent under duress. Despite his argument, the court ultimately ruled that the husband consented to the IVF treatment and to procreate, which made him the legal father. Because he is the legal father, he could not sign away his children’s right to child support.
While A.Z. vs. B.Z. shows that IVF consent forms cannot always determine the future of frozen embryos during divorce, Okoli v. Okoli shows that consent during the IVF process almost always determines the parentage of a child born through IVF.
What are the options during divorce to secure frozen embryo custody and/or the parentage of a child born through IVF?
Couples pursuing divorce have a few potential options regarding custody of frozen embryos. First, they could pursue an implantation agreement. This is where both parties agree that one party can use the embryos in the future. This option is often highly scrutinized in court when both parties are unwilling to come to an agreement. They could also agree to the destruction of the frozen embryos to avoid future legal conflict. Another alternative option is to donate the frozen embryos to scientific research. It is important to note that there are strict legal guidelines that both parties must follow. All of these options are solidified in their final separation agreement. Ultimately, both parties must fully agree to whichever option they decide upon.
When a child has already been born through IVF, custody is decided like any other child custody case. If the child was born during the marriage, the spouses are presumed to be the legal parents.
Divorce can be complicated, but we can help. We can answer your questions about custody of frozen embryos during divorce. Reach out to our family law attorneys here at Hera Law Group now.
