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When couples decide to have a child, the last thing on their mind is breakup. However, the consideration of those children cannot be ignored when preparing to have a family.
This consideration is particularly important when the couple is considering the use of in vitro fertilization (“IVF”). Typically, contracts between couples and fertility clinics contain language discussing storage of fertilized embryos at the clinic if the couple separates. However, this language is often broad and leaves the decision about whether the embryos should be implanted, donated, or discarded “up to the mutual agreement of the parties.” But what happens when the couple cannot agree on what to do with their embryos? Moreover, what happens when one of the parties wishes to implant the embryo to conceive a child and the other wishes for it to be destroyed?
This issue was left unresolved by the Maryland courts until April 2021, when the Maryland Court of Special Appeals issued an opinion in Jocelyn P. v. Joshua P (2125 Md. Ct. Spec. App. (2021)). In the opinion, the Court establishes a method to determine parties’ rights, upon dissolution of their marriage or partnership, in an embryo they jointly created and cryopreserved.
Are Embryos Marital Property?
The Court determined that embryos cannot be classified simply as an interest in property which can be divided according to traditional laws of marital property distribution. The Court agreed with previous foreign jurisdiction decisions which classified embryos as a special classification of property due to the potential of an embryo to become a human life. Of equal consideration, is each parties’ constitutional right to decide whether or not to become a parent. Thus, the Court found there are special interests at play which prevent embryos from simply being distributed as marital property during a divorce.
How Should Courts Resolve Disputes Involving Custody of Frozen Embryos?
The Court evaluated different approaches used by other jurisdictions when resolving disputes over embryos and concluded that Maryland courts should follow a blended contractual/balance-of-the interests approach. Under this approach, the court first looks to any prior agreements between the parties regarding the disposition of preserved embryos. Typically, this will be found in an agreement between the parties and the fertility clinic used to harvest and store the embryos. If the language found in said agreement is not explicit, the court will also look at other prior agreements of the parties. These agreements may be oral or written. The court will then use common law principles of contract law to determine the intention of the parties regarding custody of the embryos in the case of divorce. The court should take special care to ensure an agreement manifests the parties’ actual preferences.
Importantly, the Court held that given the need to be certain of the parties’ intentions regarding distribution of embryos, boilerplate language in a fertility clinic form contract may not qualify as an express agreement between parties regarding who should have custody and care of their jointly created embryos in the event of dissolution of their relationship. Parties must go a step further and make an agreement which expressly states their wishes for the embryos in the event of dissolution of their relationship.
If the parties’ intentions cannot be interpreted from their agreements, the court will make a determination by balancing the parties’ interests. The factors to be considered during this analysis are:
- The intended use of the party seeking to preserve the disputed embryos;
- The demonstrated physical ability of a party seeking to implant the disputed embryo to have biological children through other means (the Court emphasized that if there is no evidence the party seeking to implant the embryo could not have a child on their own, this factor was particularly weighed in favor of the party seeking destruction of the embryo);
- The parties’ original reason for pursuing IVF;
- The hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and
- Either party’s demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce proceedings.
The Bottom Line
Parties considering IVF and similar procedures should have a frank conversation with their partner regarding the disposition of any frozen embryos if their relationship ends. To avoid later confusion, couples should draft an Embryo Disposition Agreement, separate from their IVF contract with a fertility clinic, which expressly states what will happen to any embryos in the event of a breakup. After the Court of Appeals’ April 2021 ruling, this type of agreement will be viewed favorably by the courts and may avoid a court’s evaluation under the confusing and (by the Court’s own definition) unsatisfactory balance-of-the-interests approach.
Ward Co. Law can assist you with the appropriate Embryo Disposition Agreement before you start a family to save you and your partner heartache and discord in the long run.