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Making Plans for In Vitro Fertilization upon Death and Divorce

By Emilee Gehling and Isabella Erickson

In vitro fertilization (“IVF”) has made it possible for couples to have biological children when they may otherwise be unable to. The process of IVF creates pre-embryos that may be frozen in preparation for implantation in the woman’s uterus. Sometimes, more pre-embryos are created in the process of IVF than the parents may initially need. When considering IVF, a couple should consider what they want to happen to pre-embryos that are not implanted. If a couple does not have a plan, then things can get complicated in cases such as death, incapacity, separation and divorce. Often, couples overlook what might happen to their pre-embryos if these things happen. It might be unpleasant to think about, but it is important to make plans, even for unlikely outcomes.

A plan for what should happen to pre-embryos should be included in the IVF contract. Typically, hospitals and storage facilities have patients sign basic contracts. These basic contracts will usually require that the couple agree on what happens to the pre-embryos. While this is certainly an option, it does not account for when couples disagree during divorce or separation. The person who does not want the pre-embryos to be used will have a “veto” over the other person unless a court steps in, which can make an already emotional situation more difficult.

Courts prefer to let the couple make this decision. They also like “express agreements.” When a couple discusses the contract and makes direct decisions in case of divorce or separation, this becomes an express agreement. Signing the basic contract that hospitals give patients might not be viewed as an express agreement because, usually, patients will sign whatever is given to them without changing it.

There are many options a couple can make about their pre-embryos. One person can be given the sole authority to make decisions upon separation. The couple can mutually agree that if they separate, the pre-embryos will be donated to another couple. They can choose to evenly split the remaining pre-embryos. They can even elect to have them thawed to become non-viable.

Having a contract with plans in case of divorce or separation does not guarantee it will be enforced. Some courts prefer to leave it up to the couple (during divorce proceedings, for example) despite what the IVF contract says. While only a few states follow this rule, Iowa is one of them. However, making these decisions ahead of time is still useful.

If you are considering IVF, take time to seriously consider what you would want to happen when it comes to the pre-embryos. If you die, what happens to them? If you get divorced or separated, what happens to them? Ask yourself and your partner these questions and have a serious discussion about them. Then, put your decision in your IVF contract. If a difficult situation arises, you will have saved yourself a lot of trouble by making that decision early.

When completing estate plans, by signing wills or trusts, a couple with frozen pre-embryos should also address the ownership and use of the pre-embryos in case of one partner’s death or incapacity. For instance, if one partner dies, would both want the other partner to create a pregnancy with an embryo in storage? Should that child inherit from the deceased parent as any born child would? These are questions to consider. A discussion with an attorney familiar with in vitro fertilization law and estate planning may be a good investment.

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