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According to the U.S. Centers for Disease Control and Prevention (the CDC), about 9.3 million women are using infertility services. In one infertility technique, in vitro fertilization (IVF), eggs are removed from a woman's ovaries and then fertilized with sperm in vitro, which means "in glass" (a piece of glass laboratory equipment, in this case). The resulting embryos can be implanted in the woman in hopes of producing a successful, healthy pregnancy, or they can be frozen for later IVF procedures or for donation to another infertile couple.
Unused Embryos
Many pregnancies have been achieved with this technology, and many embryos have been produced that are not used. This is because to get the best chance of a successful pregnancy, several embryos are implanted in a single IVF procedure, and thus several embryos must first be created.
A few hundred thousand couples undergo IVF every year. Some of those couples had their extra embryos saved and frozen. When a couple with stored embryos later divorces, the question of what to do with these embryos arises.
Consent Forms
The clinics, hospitals, and doctors who perform IVF and other forms of assisted reproductive technology are acutely aware of this issue, and spouses who are considering IVF are fully informed of the risks and possible outcomes of the procedure. There is always a significant deal of paperwork and consent forms to be signed before the couple will be accepted for IVF. The consent forms often (though not always) deal with the issue of what the couple wants to have done with their unused embryos.
Some couples opt to donate their frozen embryos to other infertile couples. Others choose to have the embryos (which are used or frozen about five days after fertilization) destroyed. Often, frozen embryos stay in storage for a long time, sometimes unclaimed by couples who have moved on in their lives and are no longer locatable.
If you are considering getting a divorce, look first to any agreement you made with your spouse or partner about the disposition of unused embryos.
A Change of Mind
In other cases, people change their minds about what to do with the embryos — whether at the time of divorce or later. Courts and legislatures across the U.S. and around the world are grappling with the issue of "who decides" and who "owns" frozen embryos. In a very recent case, the Texas Supreme Court declined to hear an appeal by an ex-wife whose husband successfully sued to 'get custody' of three frozen embryos that she wanted to keep. In that case too, the couple had signed a consent form in 2002 that said the embryos would be discarded in case of divorce.
Get a Lawyer
It's a thorny and emotional issue, for sure. If your marriage has produced frozen embryos and you are now considering a divorce, it's a good idea to consult an experienced divorce attorney in your area, to protect and advance your rights.