Embryos and Divorce

Embryos and Divorce

Have you thought about the fate of your unused embryos in your SC divorce action? Watch this video and contact us to schedule an appointment. Don't let your legacy become an emotional liability.

Video Transcript

Speaker: Stephanie Brinkley

Hi, this is Stephanie Brinkley at Brinkley Law Firm in Charleston, South Carolina. I am a Fertility and Family Law Attorney. And today I want to talk to you about IVF and divorce. It is a fact that one in eight couples in the United States struggles with fertility issues. Some of them may be overcome by treatments by IVF or even surrogacy, but nothing is more heartbreaking than for a couple to go through years of searching for answers, thousands of dollars paid, perhaps a child is born from the relationship, and then they face divorce. But at the end of the day, the bigger question is who gets the unused embryos? At the time of the making of this video, in the news is the actress Sophia Vergara. After extensive litigation, she and her ex-boyfriend had been fighting over the use of unused embryos. Years ago when they were dating and not married they created embryos and planned to use surrogacy to have a child together.

However, the relationship did not survive and the unused embryos have been in storage. Nick Loeb has been fighting through the courts for years, trying to get possession of those embryos, and a court in California has finally and firmly decided that the prior consent forms signed at the clinic are binding and that Mr. Loeb cannot use the embryos without Ms. Vergara's consent. When going through IVF, patients sign clinic forms giving instructions about how to handle unused embryos at the end of their journey. These forms typically address certain situations such as death, divorce, and duration of time. However, these forms are consent forms and you can always withdraw your consent. So that creates an issue that may come up later on in a divorce action. Secondly, for those clinic forms that were signed over seven years ago, those forms typically didn't require notarization of the patient's signature or their spouse.

And for that reason, one spouse would typically take the lead, fill out the forms, check the box options, and sign on behalf of themselves and their spouse. In divorces today, this creates a very dangerous situation. This is a very dangerous situation because it creates unforeseen and unplanned for consequences. For example, for the spouse who did not sign the clinic forms, they may find themselves paying more child support and extended child support payments for a child conceived from the embryos and born post-divorce. While the ownership of embryos as a result of divorce proceedings has not been fully litigated in South Carolina, there are four tests that have been applied by courts across the country, any one of which could be applied by a South Carolina court. The first test is prior written agreement. A family court judge may decide that the consent forms are binding on the parties, even in light of a divorce and they cannot change their minds.

That's exactly what's happened in the Sophia Vergara case. Secondly, contemporaneous mutual consent. The family court judge may decide that the parties can change their minds about their selection in the consent form, but the agreement has to be mutual. One party does not get to have greater rights than the other in making those things decisions. Third, constitutional balance. Fundamentally, the right of privacy trumps the right of procreation, and therefore we will not force people to be parents against their will. However, that presumption can be overcome by the fourth test which is exceptional circumstances. If a party is a cancer survivor or a survivor of a debilitating disease that prevents them from having their own genetic child, they may be awarded the embryos as a result of the divorce. In spite of the uncertainty of IVF, unused embryos, and divorce, there are steps you can take to protect your interest in the future.

However, it requires consulting with a fertility attorney who understands the nuances of this emerging area of law and what proactive steps can be taken. The first thing is rather than relying on the medical consent forms, have an attorney draft a legal contract between you and your spouse, one that gives more detailed instructions about how unused embryos should be handled in light of a divorce action. The second thing you can do is to modify the clinic forms. The clinic forms typically have fill-in-the-box options and they have standard language, but typically you can add your own edits to that clinic form and it just requires knowing what options are available to you. And you won't know those options unless you consult a fertility attorney. Then finally, if you are in divorce proceedings, you have embryos in storage, and you're concerned that your spouse may get possession of those embryos and use them against your will, you definitely need to consult a fertility attorney or a family law attorney who is versed in fertility issues.

You need to make sure that the clinic knows that those embryos are marital property and they are not to be used without a court order. And it does require an attorney to make that kind of notification and place the clinic on notice. There are compassionate options for dealing with unused embryos during a divorce proceeding. However, without consulting a knowledgeable attorney, you won't know what they are, and you're going to feel helpless. Here at Brinkley Law Firm, we practice in fertility and family law. So if you're looking for options, some proactive measures, or just want to talk about better ways to deal your unused embryos during divorce proceedings, please call us or go to our website and schedule a consultation. We'd love to help make sure that your legacy does not become an emotional liability.