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What To Do If Your Spouse Wants To Keep The Frozen Embryos But You Don't

Couples who choose IVF treatments typically end up with more embryos than they need, resulting in those extra "kids" being kept in frozen storage until they're needed. Unfortunately, this can result in a significant conflict when the couple separate and one person wants to keep the embryos for future implantation while the other prefers they be destroyed. Here are your options for resolving this problem.

Refer to the Contract

Companies that specialize in IVF treatments typically have couples sign or draw up contracts detailing what is to be done with the embryos in case they separate or die. This is usually done to protect the company from liability or getting drawn into a long legal battle between divorcing spouses. However, this agreement can help you resolve the issue with minimum acrimony and angst between you and your soon-to-be ex if the contract states the two of you agreed to destroy the embryos when you divorced.

Even if the contract states the two of you agreed to keep the embryos in storage, the agreement will typically stipulate the embryos cannot be used without the consent of both parties. This will prevent your ex from implanting the embryos without your permission. If you're sure you don't want to use them in the future, let your ex know you will probably never give consent. This may prompt him or her to let the issue go.

Ask for Custody or Ownership

Courts are still struggling with how to categorize frozen embryos. Some see them as the same as living children, while others treat them as property. Your strategy for getting the court to award the embryos to you will differ depending on how they are viewed in your jurisdiction, something you can determine by researching how the courts have ruled in similar cases.

If the court treats frozen embryos like living children, you can ask for custody based on the fact that you do not want any more kids. It may sound counterintuitive. However, courts have ruled that people shouldn't be forced to become parents against their will. Since you would be expected to financially support children that result from the frozen embryos, you can strengthen your argument by showing you don't have the financial means to pay child support for another offspring based on your income and assets.

In jurisdictions where the court treats frozen embryos like marital property, the most successful strategy may be to get the court to rule the embryos as joint property, requiring the consent of both parties to use. As mentioned previously, this will prevent your spouse from using them without your permission. Be aware, though, that you may be ordered to pay a portion of the fees required to keep the embryos in storage if your ex refuses to have them destroyed. These fees can range anywhere from $350 to $1,000 per year.

For more information about this issue or help finding a solution to this problem, contact an attorney, such as Nichols, Speidel, & Nichols.