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Who Gets the Frozen Embryo in a Divorce?

Couples without children who divorce or separate normally go their separate ways after resolving the division of assets accumulated during the marriage. There are no child custody or child support issues. But what happens when a couple has frozen embryos that were created during marriage with the intention of postponing having children until sometime in the future while preserving their ability to do so? In those cases, the question of what to do with the embryo is one that must be addressed and resolved by agreement of the parties, or else leaving the resolution to a court of law.

Today, modern medicine allows couples not only to freeze their separate eggs and sperm, but also to freeze their embryos, created by joining the fertilized egg and sperm. In the event of divorce or separation, there is potential for disagreement over what to do with the shared embryo. The issue is governed by state law and the law may be different in different state jurisdictions. Like every other aspect of their divorce or separation, it is always better to have an agreement between the two parties that can be incorporated into their marital settlement agreement than to allow the matter to be litigated in court.

The celebrity embryo case of Sofia Vergara and Nick Loeb, Loeb v. Vergara 313 So. 3rd 346 (La. Ct. App. 2021), gives a clear example of why having an agreement is the best alternative. Sofia’s legal battle over her and fiance Nick Loeb’s frozen embryos began after they ended their relationship in 2014. Sophia spoke publicly about having frozen her eggs and wanting to have more children and that she and Nick Loeb planned to use a surrogate because she had thyroid cancer in 2000. Like many cancer survivors who undergo treatment, she was exposed to radiation. The only way she could have more children was from the frozen embryos. She and Loeb shared two frozen embryos and the terms of their arrangement required the consent of both parties before the embryos could be brought to term. Sophia was married to another man at the time of the lawsuit and refused to give her consent to Loeb to bring the embryos to term so he sued her. After a bitter seven year court battle over the frozen embryos, in March 2021, a judge ruled in favor of Sophia granting a permanent injunction that said Nick could not use the embryos without Sophia’s consent.

The case of Sophia Vergara is not the only litigated case involving the fate of embryos when a couple splits up.

I recently mediated a divorce settlement with a young couple. The assets were not difficult to divide. They had no children. Together, they had created an embryo during marriage which they had frozen.

Initially, they had decided to stay married but live separately with a post marital agreement to define their financial relationship and divide their assets. They would stay married for the sake of the frozen embryo. Both wanted the option to have a child from this embryo but not now.

A month passed and at our second mediation session, they announced that they had decided to go through with divorce.

My one question to them at that point was “what do you want to do about the embryo?”

They told me that they decided they would share rights to the embryo and the husband would cover any surrogacy costs under his current employer sponsored health insurance plan. The agreement between them was that both would have to consent to the carrying of the embryo to term by either the soon to be ex-wife or another surrogate, or to destroying it. Neither party at this point, deciding to divorce, were emotionally ready to make a decision about what to do with the embryo. The marital settlement agreement, the legal contract between them, would state that the consent of both parties would be required to determine what to do with the embryo after their divorce.

The remainder of the mediation session was spent allowing the parties to speak about how they were feeling about this decision. Both were teary eyed, talking about the possibilities that this embryo represented. The wife said she wanted the husband to be the father of their child. The husband wanted to know his rights and obligations if a child was born from this embryo. We spent some time discussing the legal and ethical challenges presented. The fact that they were willing to compassionately discuss this emotional issue and reach agreement was beneficial to both parties

The issue of what to do about the embryo in a divorce was a first for me in mediation. It can be a very emotionally charged issue and the role of the mediator, my role in this case, was to allow the parties time to discuss how they wanted to proceed with the embryo after divorce.

I realized how much grief can be avoided by having an agreement even if discussion brings up feelings of sadness and loss.

In our society today in which many couples are both working in demanding jobs, or are in a same sex marriage or relationship in which case they likely will use in vitro fertilization to get pregnant, or if a woman must undergo a radiation treatment that will destroy her ability to have children, the number of procedures to freeze embryos has increased over sixty percent (60%) between 2015 and 2020 according to data from the Society of Assisted Reproductive Technology. With more employers offering fertility benefits to workers as a perk to employment, more couples are delaying having children and freezing embryos.

Divorce or separation is stressful enough. Custody disputes involving future children are even more complicated and emotional. If this is a matter personal to you or someone you know, please reach out to me to discuss mediating resolution of this issue.

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