Whether you are married, divorced, or contemplating either, you would be amiss to miss out on Hulu’s new Series All’s Fair, a legal drama about an all-female divorce law firm. A recent episode whose plot focused on “embryos” raises many important questions and issues about what happens to embryos when couples decide to split.
In today’s world, there is no singular definition of a family; families are built in so many different ways, especially in the age of advanced reproductive technology. I witness how emotionally charged the topic is for my clients who have spent countless hours going through IVF to achieve the family they desire. With divorce on the brink, they ask, “What happens to the embryos now that I am divorcing?”
At the Heart of the Issue: NY Embryo Law:
NY State Law turns to 2 authorities that provide guidance for embryo disputes:
- Kass v Kass (1998) – A court of appeals case ruled that New York State should most often consider consent forms that couples sign at fertility clinics as enforceable in the event of a dispute. These consent forms are written agreements that define the couple’s intent about what will happen to their embryos in the event of divorce, death, or any other precipitating event that may affect ownership rights, or what to do if…
- Family Court Act – This statute made embryo disposition agreements binding between couples if the agreement is in writing, both parties have independent legal counsel, and if the intended parents are married, a transfer of legal rights would go into effect only upon divorce or living separately for a minimum of three years or decree of separation. Courts put a lot of weight on valid agreements and their terms.
Courts look at the intention and written agreements that couples have entered into at the time they are beginning their fertility journey. While courts focus on maintaining a person’s right not to become a parent when a dispute erupts, it also may take into consideration that the other party may have no other means to become a mother or father. If no written agreement exists, the courts weigh all of these emotionally charged issues. That is why it is imperative to make sure you have that written agreement including a prenuptial or postnuptial agreement regarding the disposition of embryos.
Put it in Writing! What You Can Do to Protect Yourself and Your Interests:
Perhaps the most important takeaway from this episode of All’s Fair is to get ahead of these issues because, after all, this isn’t just a medical decision – it is a highly emotional one with high-stakes legal complexities.
Plan Ahead:
- Have the hard conversations with your partner about what will happen to the embryos in the event of divorce.
- Together, thoroughly review all clinic consent forms AND make sure to ask questions if there is anything in them you need further clarification on.
- Consider retaining an experienced family law attorney to write up a legal document often referred to as an embryo disposition agreement, clearly outlining what you and your partner agree should happen with your embryos.
- If feelings evolve or change over time, remember to revise and update consents and legal agreements including in postnuptial agreements.
Divorce and Embryos: Are Embryos Marital Property?
Ok, so you are getting divorced, now what? Under NY law, the equitable distribution model dictates that all marital property be divided in a fair way. That doesn’t mean equally. When it comes to NY Embryo Law, however, embryos don’t fall into a neat category in terms of equitable distribution and marital property, as the issue is much more nuanced.
Legally, the issue becomes one of intent, which is why it is crucial to prepare ahead by putting everything in writing. Courts will most likely default to signed consent forms and legal agreements you have entered into with your spouse or partner that clearly define intent.
Emotions, Desires, Hope – The Very Human Side of The Debate:
All’s Fair portrayed the very intrinsic humanistic side of the argument; legal issues aside, the embryos created can signify one’s future and the hope and desire for parenthood. On the other hand, for others, the ending of a relationship cuts the tie to the future they once hoped and intended to have with their ex.
When I work with clients who are deciding these complex issues, along with the legal aspects, it is crucial that I understand the full significance these decisions have in their lives. For each individual, this will be different and highly personal. The more insight and knowledge I have about a client’s values, the significance of becoming a parent and building a family for them, the more equipped I am to represent their individual interests.
The Biggest Takeaway:
Plan ahead, put it in writing, and have the hard conversations early on. If you are currently in the thick of a separation or divorce and facing questions about your embryos, don’t hesitate to contact an attorney. I have helped guide many clients over the years to navigate these emotionally charged issues under New York State law.
Whether you are in the middle of an embryo ownership dispute or in the early stages of reproductive planning, please reach out to a trusted family law attorney who has knowledge and background in these issues
Lisa Zeiderman, Esq.