When couples prepare for in vitro fertilization (IVF), the excitement of growing a family often takes center stage. But if you’re also entering into a prenuptial agreement, there’s one important issue you shouldn’t overlook: what happens to your frozen embryos if the marriage ends in divorce?
It is common for a couple to produce multiple viable embryos through IVF. A couple might successfully have a baby with one embryo and store the others, hoping to give their baby a sibling one day. When the couple divorces, one party might still want to use the leftover embryos for future implantations while the other party may want to destroy them. With more and more people utilizing IVF and then divorcing, courts across the country have increasingly been asked to decide the fate of embryos created during marriage. The key factor judges look at in Maryland? Whether the couple had an agreement in place beforehand. If there is no agreement, the judge will conduct a balancing test of each party’s interests and ultimately decide who is awarded the embryos.
That’s why it’s critical to include embryo disposition terms in your prenuptial agreement if you’re planning IVF. The agreement should clearly state the couple’s intentions for the embryos in the event of divorce—whether they will be donated, destroyed, or awarded to one party. Without such a provision, you risk leaving that deeply personal and emotional decision in the hands of a court.
A well-drafted prenup can provide clarity and avoid costly, emotionally charged legal battles down the line. If you’re about to get married and are considering IVF, talk to your attorney about how to address this issue thoughtfully and respectfully in your agreement.
Written by Virginia Yeoman