Who Gets Frozen Embryos in a Divorce?

Couples who dream of having a child use assisted reproductive technology (ART) for many reasons. Some are experiencing infertility. Others are same-sex or transgender couples who potentially need donor eggs, donor sperm, or a surrogate to start a family.

Anyone who has used or knows someone who has used ART (42% of all Americans in 2023) understands how grueling and expensive the process can be. Not all couples make it through unscathed, which can lead to legal disputes over unused frozen embryos.

Who gets ownership or custody of embryos when a relationship ends? Is a frozen embryo marital property, a child subject to state child custody laws, or something else? Here's an overview of how lawmakers and courts are resolving disputes in this rapidly developing field of law and medicine.

What Is a Frozen Embryo?

The most common type of ART procedure is in vitro fertilization (IVF). IVF involves collecting eggs from ovaries and fertilizing them with sperm in a lab. One or more fertilized eggs—called "embryos"—are then transferred to a uterus, hopefully resulting in a pregnancy. An embryo can be transferred immediately after fertilization, or, more commonly, after freezing the embryo. IVF can be done with or without the assistance of gamete donors (eggs and sperm) and surrogates.

The IVF process often produces more embryos than can be transferred at one time. The extra embryos are typically frozen and stored for potential future use. Joanne Rose, an expert in reproductive law at Johns Hopkins, estimates that there may be as many as 1.5 frozen embryos in the United States.

Having frozen embryos in storage can make future IVF cycles less risky and expensive. But it can also lead to complex ethical and legal questions when couples don't agree on what should be done with their remaining embryos (called "embryo disposition").

What Happens to Unused Frozen Embryos?

People who are fortunate enough to have unused embryos after a round of IVF must decide what to do with them. The options available for embryo disposition vary from state to state. Decisions about what to do with unused embryos—whether a couple stays together or not—are complicated and informed by whether a couple sees them as biological tissue or future children.

Embryo Disposition Choices

The most common embryo disposition options include:

• giving control to one partner if the other partner dies or the couple divorces
• discarding
• donating for research
• donating for use by another individual or couple (sometimes called "embryo adoption"), or
• storing indefinitely (at an annual cost of $350 to $1,000 per year).

Before making an embryo disposition decision, you should have a detailed discussion with your partner, doctor, and fertility counselor about each option's emotional and medical ramifications. You should also talk to a family law attorney about the potential legal consequences of each option and how your decision will be enforced now and in the future.

Embryo Disposition Agreements

You have to give permission (consent) to freeze embryos. Before treatment, the fertility clinic will present you with many consent forms, including an agreement about what to do with unused embryos in various scenarios, including after the death of a partner, separation, divorce, and nonpayment of storage fees. (Here's an example of Standford's Medicine's Informed Consent to Egg Freezing and Disposition of Frozen Embryos form and other fertility forms.)

You and your partner must read these forms carefully. Courts will very likely enforce this agreement as a binding contract in the future. Take your time reading the form. You shouldn't make important decisions about your family and future in a rush while undergoing the physical and financial stress of IVF.

If you have questions or you and your partner can't agree about what should happen, talk to a lawyer. You and your lawyer can write your own embryo disposition agreement that is more comprehensive than the clinic's consent form and tailored to your wishes. If you and your partner change your minds about what to do with your embryos in the future, make sure your new agreement is in writing and signed by both of you.

Some couples include embryo disposition agreements in their prenuptial agreements and estate plans, though it's unclear exactly how courts will interpret these agreements because this is an area of law that's unsettled and varies dramatically from state to state.

What Is the Legal Status of Frozen Embryos?

The question of when human life begins has been debated by scientists, theologians, lawyers, and politicians for generations. Is it at conception? First breath? Sometime in between?

Where lawmakers and judges land on that issue informs whether a frozen embryo is treated as property, a person, or something else.

Embryos as Property

Several states, including New York, California, and Oregon treat frozen embryos as property. California, for example, applies contract, not child custody laws to frozen embryo disputes. Fertility treatment providers in California must have patients complete an advanced directive for the disposition of embryos, including what should happen after death or divorce. Courts enforce the directive as a legally binding contract. (Cal. Health & Safety § 125315 (2024).)

When courts treat frozen embryos like property, the owners of the embryos have full authority to decide what happens to them.

Embryos as People

Louisiana is currently the only state with a statute (law) that defines an in vitro fertilized embryo as a "juridical person" with limited rights. Human embryos in Louisiana can only be used to develop a pregnancy and can't be intentionally destroyed, sold, or used for research. (La. Rev. Stat. §§ 9:121, 9:122, 9:123 9:124, 9:126, 9:129 (2024).

When courts treat frozen embryos like people, the embryos are entitled to some legal protection and the "parents" of the embryos have less control over what happens to them.

Embryos as Potential Life

Many courts and the American Society for Reproductive Medicine say frozen embryos have a special "interim" legal status, deserving of more recognition than property because of their potential for life, but less than living people.

This hybrid approach allows the owners of frozen embryos to have most—but not absolute—decision-making authority over the embryos. For example, a state recognizing an embryo's special legal status might prohibit the creation or sale of embryos for research purposes while still allowing couples to discard unused frozen embryos.

How Judges Resolve Disputes Over Frozen Embryos in a Divorce

Each state has its own approach to resolving disputes over frozen embryos. The most common approach is to enforce a couple's existing agreement. But in the absence of a valid agreement, courts either balance competing interests or require mutual consent by both parties.

Contract Enforcement

As previously noted, most courts that have had to resolve post-breakup disputes over frozen embryos apply contract law to decide if an agreement the couple made before they created the embryos, typically written on a clinic's consent form, is legally binding.

Example: A high-profile example of this approach involves the actress Sofia Vergara and her ex-fiance, Nick Loeb. The couple underwent in vitro fertilization in 2013, resulting in two frozen embryos. At the time of treatment, Vergara and Loeb signed an agreement that said that they both had to agree before either could do anything with the embryos. But after the couple split in 2014, Loeb sued Vergara for custody of the embryos in California. He then dropped the California lawsuit to pursue a similar claim in Louisiana, which was eventually dismissed for lack of personal jurisdiction. Instead, in 2021, a California court granted Vergara's request to enforce their binding agreement and permanently prevent Loeb from using the frozen embryos without her written permission.

Balancing Test

When a couple doesn't have an agreement or the agreement is unenforceable, courts typically apply a balancing test to resolve embryo disputes.

Example: The Supreme Court of Colorado applied this approach in 2018. The case involved a couple who were able to conceive three children using IVF but still had unused frozen embryos at the time of their split. Mandy wanted to keep the embryos for future implantation. Drake wanted to discard them. The agreement the couple signed at the fertility clinic before treatment didn't address what should happen to the remaining embryos if they divorced.

The trial court awarded the embryos to Drake, finding that his right to avoid parenthood outweighed Mandy's right to have more children. The court of appeals agreed. The Supreme Court sent the case back to the trial court to balance the following factors:

• the intended use of the embryos by the person who wants to preserve them
• whether that person can become a genetic parent without the embryos
• why the couple went through IVF in the first place
• the hardships the person who doesn't want to become a parent faces (emotional, financial, logistical)
• whether either party is trying to use the embryos in bad faith or as leverage in the divorce, and
• other relevant factors specific to the situation.

(Rooks v. Rooks (In re Marriage of Rooks), 2018 CO 84 (Colo. 2018).)

In most cases, courts applying the balancing test have decided in favor of the person who wants to avoid procreation. In rare cases, courts have found in favor of the person who wants to procreate when the frozen embryos in dispute are that person's last and only opportunity to have a biological child. For example, when embryos are created before cancer treatment that causes infertility.

Mutual Consent

A few courts have taken a different approach to frozen embryo disputes, requiring "contemporaneous mutual consent." This approach requires courts to consider any prior embryo disposition agreements, but if either partner changes their mind, the agreement no longer controls. Instead, the parties have to keep the embryos in storage until they can agree on what to do with them.

Example: The Iowa Supreme is one of the few courts to apply this approach. In 2003, the court decided a case involving a couple arguing over custody of 17 frozen embryos. The couple had signed an agreement before starting fertility treatment that said that any resulting embryos couldn't be used for transfer, release, or disposition without both partner's written permission. When they split, Tamera wanted custody of the embryos to eventually have a biological child. Arthur wanted to donate the embryos to a couple battling infertility. The Court ruled that the frozen embryos would have to stay in storage indefinitely until Tamera and Arthur agreed on what should happen to them. (In re Marriage of Witten, 672 N.W.2d 768, 772 (Iowa 2003).)

State Laws on Custody of Frozen Embryos at Divorce

A few states have passed laws addressing the disposition of frozen embryos. Most of these states, including Florida and California, place decision-making authority in the hands of the couple by requiring them to enter enforceable embryo disposition agreements before fertility treatment. (Fla. Stat. § 742.17 (2024); Cal. Health & Safety § 125315 (2024).)

Other states have taken radically different approaches. Louisiana, for example, says that any disputes between parties about an in vitro fertilized ovum must be decided based on the "best interest of the in vitro ovum." (La. Rev. Stat. §§ 9:131 (2024).)

In Arizona, when a couple is fighting over embryos in a divorce, the court must award the embryo to the spouse who intends to develop it to birth, regardless of an existing contract between the couple. The spouse who doesn't want to use the embryo for procreation automatically has no parental rights, responsibilities, or obligations for the resulting child, but can agree in writing to be the legal parent in some situations. (Ariz. Rev. Stat. § 25-318.03 (2024).)

How Battles Over Reproductive Rights Affect Frozen Embryos

In June 2022, the United States Supreme Court eliminated the constitutional right to abortion that had been established nearly 50 years earlier in Roe v. Wade. The ruling—Dobbs v. Jackson Women's Health Organization—returned the issue of how to regulate abortion to the states. In response to Dobbs, around 21 states have banned or restricted abortion rights.

In trying to restrict or eliminate the right to an abortion, some lawmakers and courts have defined life as beginning at conception, which could jeopardize access to common ART techniques, such as intro vitro fertilization (IVF), which often involves destroying—inadvertently or intentionally—frozen embryos.

The potential for Dobbs to restrict access to fertility treatments is real. In February 2024, the Alabama Supreme Court ruled that an embryo created by IVF can be considered a child under state law, opening the door for potential parents to sue for wrongful death over the destruction of a frozen embryo the same way they could if the embryo were a developing fetus or living child. Within a week of the decision, several Alabama fertility clinics and embryo shipping companies suspended services in Alabama out of fear of civil liability.

In response to urgent and immediate political pressure to restore access to treatment, Alabama lawmakers quickly passed a new law in March 2024 to shield health care providers and patients from civil or criminal liability for the destruction of embryos during IVF treatment. Alabama Governor Kay Ivey described the bill as a "short-term measure" designed to allow IVF providers to resume treatment. But the law doesn't change the Supreme Court's ruling that embryos are the same as children under state law or allow patients to file medical malpractice claims against providers who provide substandard care, leaving many questions about the long-term viability of IVF in Alabama.

It remains to be seen how the shifting reproductive rights landscape will affect disputes over frozen embryos. Each state could change its laws at any time. If you want to know what your rights are, talk to a family law attorney with expertise in reproductive law, preferably before you start fertility treatment.

Getting Legal Help

Assisted reproductive technology is a rapidly developing and emotionally fraught area of law and medicine. You can learn more about your choices and find support online at Fertility IQ.

If you have questions about your embryo disposition options and your rights to custody and control of your frozen embryos now and in the future, talk to a lawyer with expertise in reproductive law.