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What happens to your IVF embryos in a divorce?

On Behalf of | Jun 2, 2021 | High Asset Divorce |

Few things complicate a divorce as quickly and completely as children do. If you have children, filing for divorce will likely take longer, and shared custody will ensure that you have to maintain a relationship with your ex indefinitely.


In fact, those children don’t need to be born or physically present yet to make divorce more difficult. The presumption of paternity for a pregnant wife divorcing in Massachusetts can have implications for her and her husband. Those trying to get pregnant prior to their filing may also have unique complications that affect their divorce process.


For those with health concerns, a family history of genetic issues or previous fertility issues, in vitro fertilization (IVF) can be the best way to expand their family. Sadly, it can also lead to some significant complications during a divorce.


What happens to the embryos when you file for divorce?

Different states have different approaches to the rights of parents who choose to divorce or separate after beginning IVF. Typically, couples that begin IVF have to sign extensive contracts as individuals. These contracts help minimize the liability of the medical professionals facilitating IVF procedures by making clear the restrictions upon and rights of each party involved in the process.


Often, the divorce courts will uphold the terms set in such agreements. It is common for them to include clauses where the couples agrees ahead of time what will happen after successful IVF produces a child or they choose to stop the process. The two most common solutions are the destruction of unused embryos or their donation to families in need of genetic materials for IVF. In some cases, couples do agree to allow one spouse to retain the embryos in the event of a divorce.


What is the Massachusetts approach to IVF embryos?

The Massachusetts family courts are likely to consider such situations on a case-by-case basis. One of the most well-known early legal cases involving IVF came out of a Massachusetts court.


It involved a divorcing couple who disagreed about the IVF contract they had previously signed. The courts eventually threw out the contract with the understanding that it no longer reflected the situation or wishes of the people who had signed it.


In other cases, especially where the end of the marriage occurs more quickly and there is not a gap of years between the signing of the contract in the divorce proceedings, the judge may be more likely to uphold the agreement. The better you understand how the Massachusetts courts handle these cases, the easier it may be for you to predict how they will handle the matter in your divorce.