On Ice: Dealing with Frozen Embryos, Eggs & Sperm in Divorce

March 6, 2023

With the societal trend of people delaying marriage and parenthood and the vast expansion of technology in family planning, many are choosing to freeze their own eggs or sperm, or make embryos with their spouse, or receive genetic material from a donor. Reasons to freeze such genetic material may be to simply plan for future family building, or for risks associated with a medical diagnosis like cancer or before entering military service.

Assisted reproduction includes everything from freezing your own eggs, receiving donated sperm, making embryos with your own or donated genetic material, embryo donation, testing such material, and of course procedures such as insemination in IUI and embryo transfer in IVF or surrogacy. Upon completing your family, or choosing to no longer proceed with using such genetic material, or saving it for a later time, a couple may store the genetic material with their clinic or a cryobank.  Learn more about terms in assisted reproduction here.

When going through a divorce, deciding who gets the genetic material may be part of the equitable distribution of the marital estate.  

The couple may have an agreement on how to treat the genetic material should they divorce, either on their own or based on a prenuptial or postnuptial agreement or clinic and cryobank contracts. If the parties cannot agree how to divide, dispose of, or donate such genetic material, the court may need to determine the outcome of the genetic material in resolving the parties’ equitable distribution of their marital estate. Here are five questions to ask about genetic material in divorce:

1. Do you have any frozen genetic material?

When working with new clients, attorneys can inquire as to whether clients have any genetic material stored individually or as a couple at their initial intake. If the clients are seeking a prenuptial or postnuptial agreement or going through a divorce, the clients can decide who shall have rights to the specific genetic material by agreement or court order.

2. When did you receive/retrieve and store the material?

In Pennsylvania, the marital estate is determined by the time period from when the parties were married to their separation. As such, when the parties received and stored the genetic material is paramount to whether it is considered marital property unless there is an agreement otherwise. Either party may also have their own genetic material stored as well, such as frozen eggs from before they were married or embryos from a previous relationship.

3. What have you paid for the services surrounding the genetic material? Who paid for what?

Genetic material may be donated from one person to another directly or through an agency, or parties may purchase anonymous sperm or eggs from a cryobank. Once the material is donated or purchased, the intended parents are responsible for such material, including any storage fees and any transfer fees to the clinic. The parties also pay the fertility clinic for the medical services surrounding their family building, and either both or only one party may technically be the patient. If a couple proceeds in third-party reproduction, meaning working with a donor or surrogate, there may be expenses related to the medical, psychological, and legal clearance process in completing a Donor or Gestational Carrier Agreement. Learn more about the medical, psychological, and legal clearance process in surrogacy here.

4. Did you sign any contracts with third parties or providers?

When going through assisted reproduction, the couple seeking donated material will have contracts directly with the known donor, or with the agency or cryobank where they purchased the material. Further, in order to proceed with any assisted reproduction at a fertility clinic, such as receiving donated material, making embryos, testing them, and any medical procedure to induce pregnancy, the intended parents will sign various contracts with the clinic regarding the genetic material, storage, and agreed upon disposition of the material. It is important to pay attention to the storage fees for any frozen genetic material as such agreements may have clauses that re-donate or dispose of the material for a lapse in paying their storage fees.

5. Do you have estate planning documents?

A will and health care directive may help to guide the outcome of ownership and disposition of frozen genetic material as well as issues like posthumous retrieval. If a Donor Agreement was executed, it is important to ensure that any correlating aspects are matching with any estate planning documents, such as “Right of First Refusal” to return the eggs, sperm, or embryos to the original donor.

If a divorcing couple has stored genetic material and cannot agree on how to split or dispose of the material, a dispute may arise as to who has the right to the eggs, sperm, or embryos.

The personal circumstances of the parties, the timing of the procurement of the genetic material, the cost contributed by both parties, and the various legal documents signed in the assisted reproduction process or the family’s estate planning may impact the outcome of the genetic material in the equitable distribution of the marital estate.

Whether genetic material – egg, sperm, or embryo – should be considered property at all is a contested issue that varies by state. Some states view genetic material as property with ownership rights, while others look at it as quasi-property, with certain parameters in place. Conversely, some states have laws that favor the party most likely to bring the genetic material to life, and some do not view genetic material as property at all. Other states are silent on the matter.

In Pennsylvania, there are no laws outlining one’s rights to genetic material.

The paramount case is Reber v. Reiss, where the court analyzed which party should receive the frozen embryos in the equitable distribution of the parties’ marital estate. The court analyzed the various approaches taken by other states in analyzing how the embryos should be divided or disposed of. Though purposefully not delineating which approach guides in PA, the court relied on the facts of the case to weigh one party’s right not to procreate with the other party’s right to procreate. In Reber, wife wanted the embryos as she was a cancer survivor and had no path forward to have a child that would be biologically related to her without the embryos. The husband, conversely, wanted to thaw and destroy the embryos because of his concerns of custody, support and inheritance, and himself was in a new relationship and with a new child. The parties had not signed the disposition portion of their consent forms to confirm who would receive the embryos in the event of divorce or death of either party. The court awarded the embryos to wife based on the imbalance of her ability to achieve biological parenthood. Interestingly, the court chose not to address the issue of support or custody, as there was no child before the court on such issue, and tabled such issue, if it were to arise.

Due to the complex nature of genetic material and the lack of clear laws, it is important to consult with a specialized attorney in your state.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.