Legal advice: Plan ahead when using IVF


GRAND RAPIDS, Mich (WOTV) – Invitro fertilization is commonplace today. When a couple turns to IVF to have a child the clinic usually requires that they complete a disposition form stating how they wish to handle any extra embryos. The choices range from donating them to science, donating them to couples who can then use them, destroy them or freeze them and store them for future use. If storing the frozen embryos is their choice they then decide where they will be stored. Some clinics provide on-site storage and there are companies that store embryos for you. Both of those choices have fees involved that can run into the thousands of dollars per year in storage fees.

When seeking IVF a couple is often desperate to have children and the last thing that they are thinking about is what will happen should their marriage end in divorce. Some of those couples find themselves embroiled in a legal battle with their former spouse over who gets ownership or how the embryos should be used in the future. Women often want to have the ability to use them to have future children, with or without being married. Men often do not want biological children being born without their consent. The question of whether or not they would be required to pay child support for those future children can enter into their decision.

There are very few laws surrounding this issue. Courts in all states have been all over the map in their decisions, although in Michigan, several courts have sided with the husband and ordered the embryos destroyed. It appears that the courts feels that forcing the man to become a parent against his wishes trumps a woman’s inability to have desired children. However, that is not always the outcome as some have sided with the woman.

How can you protect yourself from the nightmare of litigation should you and your spouse divorce and have embryos in storage? First, it is a good idea to have a contract drawn up that stipulates exactly would have custody of the embryos should a divorce occur. It will not ensure avoiding a court battle as some courts have over-ridden this type of agreement, but it would give the court a clear indication of the intent of the couple as to what their wishes were at the time. A competent family lawyer would be your best bet to draw up a legal contract expressing your wishes that would be signed by both and witnessed.

A light that may help to solve this dilemma is that technology keeps advancing and it is now possible to freeze unfertilized eggs. It could be something couples would want to consider if the reason for turning to IVF is the woman’s infertility. In that way, she could retain her eggs for future use without having the man become a parent against his wishes.