How Are Embryos Handled After Divorce in South Carolina?

Embryos and Divorce

Certain issues are a part of every divorce: division of marital property, and, if there are children, custody of those children. But what happens in marriages in which the marital “property” includes frozen embryos from IVF procedures? Is there such a thing as embryo ownership rights? And if a couple can’t decide what happens to their embryos, how does a court make the decision?

This question is one that is increasingly likely to arise. There are currently over a million frozen embryos in storage, and according to the New York Times, IVF rates have increased during the COVID-19 pandemic. The Mayo Clinic estimates that about 10-15% of couples experience infertility issues, and it is general knowledge that nearly 50% of marriages end in divorce. To the extent that those two groups overlap, there may be hundreds of thousands of embryos whose future will become uncertain due to divorce. And given that a frozen embryo can be viable for decades, that number will probably climb even higher.

Divorce and Embryos in South Carolina

Unfortunately, as with many issues, the law of assisted reproductive technology (ART) takes a while to catch up with the science. There are no laws on the books in South Carolina as to how embryos should be treated in a divorce. However, courts in other states have dealt with frozen embryos and divorce, and their reasoning would likely guide South Carolina courts in a similar situation.

Courts across the United States have so far taken four general approaches to the issue of what happens to frozen embryos after divorce. Those approaches are:

  • Prior Written Agreement: Fertility clinics have clients sign a consent form before treatment; those forms typically address what will happen to frozen embryos in a divorce. Some courts have ruled that a couple that has contributed their genetic material to create an embryo is bound by their prior written agreement with the clinic.
  • Contemporaneous Mutual Consent: Some courts have allowed divorcing spouses to change their mind about what will happen to their embryos after divorce from their previous agreement on clinic consent forms. However, the decision must be a mutual one. One party cannot overrule the other.
  • Constitutional Balance: The issue of whether one party can create a pregnancy with the couple’s frozen embryos causes a conflict of the parties’ constitutional rights. With this test, there is generally a presumption that the right to privacy (not becoming a parent against one’s will) usually trumps the other party’s right to procreate. (However, in Arizona, disputed embryos are given to the person who is more likely to create a pregnancy and bring them to term.)
  • Exceptional Circumstances: If exceptional circumstances exist, a court may decide that they tip the balance in favor of the party who wants to use the embryos. For example, imagine that the party who wants to have a baby using the frozen embryos is a survivor of cancer or some other debilitating disease that prevents them from having genetic children without use of the existing embryos. In that situation, a court might grant the embryos to that person over the objection of the other party.

Because the law in this area is not well-established, a court in South Carolina might rely on any of these tests in order to resolve a dispute over unused embryos in divorce.

Other Issues Involving Embryos When a Marriage Ends

Even as the law is evolving regarding the legal ownership of embryos in divorce, new issues keep arising. For example, it was not even seven years ago that the U.S. Supreme Court made same-sex marriage legal in every state. What happens if a same-sex couple divorces and has a dispute about what will happen to their frozen embryos? Does the spouse whose genetic material was used to create the embryo have greater rights than the other spouse? Does the egg or sperm donor have rights?

Divorce is complicated enough on its own. When adding the issue of the fate of unused embryos to the mix, it becomes even more difficult. Embryos are more than just property, but are also not treated as children. The question of what will happen to unused embryos is generally a very emotional issue for both spouses in a divorce.

For that reason, it is best for divorcing couples who have frozen embryos from IVF to work with an attorney who understands the complexities of both ART and family law. An experienced family law and fertility attorney can help you navigate these complicated issues with both legal knowledge and compassion. We invite you to contact Brinkley Law Firm, LLC to discuss your questions about divorce and embryos. You can also learn more about this developing legal issue in this video about divorce and embryos.