Gen X and millenials are seeking fertility treatments in record numbers. Whether you are pursuing IVF, egg banking, gamete donation, gestational surrogacy, or other assisted reproductive technology, you need to think about the future of your genetic material.
Increase in Fertility Treatments
According to a 2018 survey conducted by Pew Research Center, about four-in-ten (43%) of those with a bachelor’s degree have had some exposure to fertility treatment – either through their own experience or that of someone they know. This statistic increases to 56% among those with a postgraduate degree. About 2% of all births in the United States now result from assisted reproductive technology ("ART"), with higher rates in states that mandate insurance coverage for fertility treatments.
This increase in fertility treatments compared with past generations is only growing as Millennials and Gen Z grow their families. Grateful as we are for advances in medical technology allowing for gestational surrogacy, reciprocal IVF, and egg donation, these medical advances come with ancillary responsibilities - like planning for the future disposition of your cryopreserved embryos.
There are over one million cryopreserved embryos in storage throughout fertility clinics in the United States.
Since the first IVF baby was born after Roe v. Wade became law, we never had to take a close look at what would happen to cryopreserved embryos if states decided they were people - or "juridical people". The recent Dobbs decision made everyone re-visit thoughts about their own cryopreserved embryos with questions including: where are our embryos stored and what exactly do our clinic forms say?
While IVF itself remains unaffected by Dobbs, the legal status of embryos created through IVF most certainly is. What is the legal status of embryos in states now banning abortion? Do these embryos have the same legal status as people in personhood states? If your embryos are stored in Alabama, Texas, or Georgia, it's time to consider moving them.
What happens if the progenitors of these embryos disagrees about their use or non-use? What happens if they divorce? Or die? What happens if the couple with joint dispositional control of the embryos used donor gametes to create the embryos? Does this change the analysis? Does one hopeful parent's desire to have a child from their embryos trump their partner's desire not to become a parent? Who gets to decide?
Courts and Embryos and Fertility Clinic Forms
It is expected that divorce and family courts will decide custody issues involving minor children, but custody battles involving embryos are becoming increasingly common. How are such issues handled from a legal standpoint?
In New York, the court in Kass v. Kass, decided the forms filled out by the divorcing couple at their fertility clinic determined what would happen to the couples' embryos if they disagreed about their disposition. While this strict contractual approach makes sense from a legal standpoint, most couples don't fully think through what they would want to happen to their embryos should they separate or divorce. Fertility patients sitting in a doctor's office are hoping to have children, often after struggling to conceive for a substantial length of time. These hopeful parents aren't in the head space to think through what would happen if they end up with too many embryos.
Embryo Disposition Agreements
While a premarital or prenuptial agreement may address separate property vs. marital property, there is a similar option in the context of IVF. Couples with joint dispositional control of cryopreserved embryos can enter into legally binding Embryo Disposition Agreements addressing the transfer of legal rights and dispositional control of their embryos upon some future event, such as death or divorce. In New York, Section 581-305 of the New York Child-Parent Security Act provides that so long as the Embryo Disposition Agreement is in writing, and each party to the agreement has the benefit of legal counsel, the intended parent who transfers legal rights and disposition control of the embryo(s) is not a legal parent of any child conceived from the embryo(s).
It is important to note, that while embryo disposition agreements are available to married and unmarried couples alike, where the intended parents are married, the transfer of legal rights and dispositional control occurs only upon divorce.
Without an Embryo Disposition Agreement, courts are forced to reference clinic forms and other contracts between the two parties and the fertility clinic. This was the case in the New York cases of Kass v. Kass and KG v. JG.
In KG v. JG, the New York Supreme Court ruled that the defendant agreed in the clinic’s contract to allow the plaintiff sole ownership of the embryos for any purpose. Thus, the defendant was not permitted to be involved in how the embryos could be used, nor could the defendant demand the embryos be discarded, as desired.
In Kass v. Kass, the New York Appeals Court decided that the parties’ signed contract with the fertility clinic required both the husband and wife’s consent if the wife wished to use the embryos to become pregnant even after divorce. The court in Kass v. Kass also stated that couples should consider such scenarios prior to undergoing IVF or cryopreservation procedures and take the time to clearly state their choices in writing.
Leaving Embryos in Your Will
Leaving decisions regarding what will happen to your embryos to the decision of the court and clinic forms filled out at the start of your IVF journey is risky. Addressing your intentions regarding the future use and disposition of your embryos is essential to avoiding costly, high-stakes embryo litigation.
Embryo Disposition Agreements become especially important as many estate planning attorneys are advising their clients they are unable to transfer ownership of their embryos in a Last Will and Testament - at least not in New York State.