Planning for the future: Contracts about Frozen Embryos, Part 1

Samantha S. Erks, JD

Are you dreaming of a healthy, happy baby and planning to use in-vitro fertilization (IVF) to get there? You are far from alone. Over 80,000 babies are born from IVF every year in the United States. During the IVF process, embryos are created and implanted into the intended birth mother’s uterus, but usually there are more embryos than needed. The average couple who goes through IVF has about seven embryos left, resulting in over a million frozen embryos in storage in the US. There are several options for those remaining embryos, and you and your partner need to consider what will happen to yours.

Most fertility clinics offer four options for excess embryos after IVF: storage, disposition, donation to research, and donation to others looking to undergo IVF. Freezing embryos and storing them is the most common choice, especially for those couples who may want to have more children later. To some, however, these standard options don’t meet their specific needs or beliefs, and clinics have increasingly been providing other alternatives, such as compassionate transfer, private burials or religious rituals during disposition, or fertilization of one egg at a time to prevent the creation of extra embryos. Whatever option is right for you, it is important to take steps to protect the choice that you make, and the best way to do that is through thorough contracts, both between you and the clinic and between you and your partner.

The options regarding these issues should be discussed BEFORE you and your partner begin the IVF process. Death and divorce are never pleasant topics, but now is the time to go over them. What will happen to frozen embryos if one of you dies? Can the surviving partner use the embryos? If you divorce, will one of you get control of the embryos, or will they be donated or disposed of? If you divorce and implant over your partner’s objection, will they be considered a parent? If you and your partner stay together but later disagree on disposal, implantation, or donation, who will win out? Will donations be anonymous or not? What if you can no longer afford the storage fees? What happens when the clinic won’t store the embryos any longer? Considering as many different futures as possible now will save you disagreement, heartbreak, and litigation in the future.

A reputable IVF clinic will provide you and your partner with a standard consent form that will ask about your desires in different situations. Be sure to read this very carefully and fill it out fully. The forms the clinic will provide will likely be very standard, so it is a good idea to also have a separate contract between yourself and your partner, drawn up by a lawyer, which lays out all of your plans for different possibilities in as much detail as possible. Make sure that this contract and the clinic forms do not contradict each other. If you and your partner change your minds later, be sure to inform the clinic and update your paperwork right away. Also notify any institution storing your embryos of changes in your contact information; if they are closing or their options change, they will need to be able to reach you so you can decide if those changes impact your decisions. Be sure you know your state’s position on IVF contracts. Most states will uphold these contracts as written, but others take different approaches. You may need to consider your willingness to do IVF if there is a possibility that the courts may override your decisions.

While only wanting to focus on the positives is understandable, the best time to protect yourself, your partner, and your stored embryos is before beginning IVF. Count on the gratitude of your future self that you took the time to plan for every possible outcome, even the unpleasant ones.