In vitro fertilization (IVF) has allowed many people who otherwise couldn’t conceive to do so, with a little help. Anyone who has ever been through IVF knows that it can be physically draining, time-consuming, and expensive. It’s also an emotional roller coaster, between the hormones involved and the waiting. How many embryos will there be? Will they be viable? When transferred, will they successfully implant in the uterus? And finally, if there is a pregnancy, will there be a healthy baby at the end of it?
Given the expense and uncertainty of IVF, it is understandable that prospective parents undergoing the process want to do everything possible to maximize the chances of having a baby. For many couples, repeated cycles are financially out of reach; they are betting everything on the success of one IVF cycle.
The good news is that a successful cycle can result in the release of multiple eggs and the creation of multiple embryos. Often, more than one embryo is transferred into the woman’s uterus. The goal is often not to create twins or triplets (though that sometimes happens) but to boost the chances that at least one embryo will successfully implant and begin to grow.
Often, though, it is neither possible nor desirable to transfer all viable embryos at one time. The remaining embryos go into storage. If the couple wants to try for another pregnancy in a few years, those embryos will be waiting (and frozen embryos can be viable for decades). But what if the couple decides not to try for another pregnancy? What happens if they get divorced?
There are, essentially, three options for embryos that parents are not going to be used. They can be preserved and stored indefinitely; they can be discarded; or they could be donated, most likely to other prospective parents hoping to conceive.
Preservation is expensive. Fertility clinics may charge up to $200 per month to store frozen embryos. It is much more than a matter of keeping a container in a freezer; liquid nitrogen must be maintained, and trained staff must manage the facility. There is an emotional cost, too: the decision about what, ultimately, to do with the embryos hangs over the heads of the couple to whom they belong.
Discarding is less financially costly, but perhaps more so emotionally. After the physical and emotional struggle involved in creating the embryos, it is very difficult for many people to thaw and discard them. Those people whose religious traditions state that life begins at conception may have an especially hard time with the prospect of discarding embryos.
Donation would seem like an ideal option: would-be parents are spared some of the challenges of IVF, and the embryos are used as they were intended, if not by the same people. But reported rates of embryo donation are very low, only about 1 percent. If you think about it, it’s easy to understand why: as difficult as it might be to allow one’s embryos to be discarded, it could be equally difficult to face the prospect of one’s genetic children being raised by someone else. Unable to choose between these three options, some parents simply stop paying storage fees, in effect abandoning the embryos.
By the estimate of the Department of Health and Human Services, there are about 620,000 cryopreserved embryos in the United States. It stands to reason that, statistically speaking, some of the couples who created those embryos will divorce while the embryos are in storage.
Attorney Stephanie Brinkley, whose practice involves both assisted reproduction law and divorce, was interviewed for an article about unused embryos in the New York Times. She confirmed that she has seen the issue of embryo disposition come up in a number of divorce cases.
For some couples, the question of what to do with the embryos arises during divorce simply because, up until that point, they weren’t forced to make a decision. As many people do with difficult choices, these couples may have “kicked the can down the road” until the road ended and a decision was forced.
For others, there may have been conflict within the marriage about what to do with the embryos. One spouse may have wanted to try for more children using the embryos, while the other was willing to put attempts to have more children in the past.
Conflicts about embryo disposition during divorce may be especially fraught. One divorcing spouse may see the embryos as their only chance to have more children; the other may be adamantly opposed to having any more children (or the prospect of additional child support). This is an issue on which, obviously, there is no possibility of meeting in the middle. Either the embryos will be used, or they will not—in which case the couple must decide whether to donate, discard, or continue to store them.
If you have undergone IVF and have embryos in storage, you may be concerned about next steps, particularly if you are facing divorce. We invite you to contact Brinkley Law Firm to schedule a consultation to discuss your options and protect your rights.