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What happens to frozen embryos in a divorce?

Divorce is complicated enough for most couples, but those who’ve chosen to freeze embryos for later use have an additional layer of issues to address — especially here in Arizona. If you currently have frozen embryos with your soon-to-be ex-spouse, it’s important to understand your legal rights, responsibilities, and options. 

Continue reading to learn what happens to frozen embryos in a divorce, then contact Blanchette Law PLLC at (602) 881-1748 for personalized guidance from a trusted divorce lawyer in Tempe.

what happens to frozen embryos in a divorce

What are frozen embryos?

LGBTQ couples and couples struggling with fertility challenges often pursue IVF (in vitro fertilization) in the hope to become parents.

In many cases, excess embryos are created during the IVF process. Couples often choose to save these embryos in case their current IVF cycle fails, or if they plan to have more children in the future.

Sometimes embryos are created and stored even if they aren’t going to be used until much later. The embryos can be frozen and stored in a fertility center for up to 10 years — or even longer in some instances.

The issue of frozen embryos and divorce

Unfortunately, a marriage may end before a couple has a chance to use their frozen embryos. When this happens, the decision of what to do with them may become a source of conflict.

The situation becomes particularly dicey when one spouse feels that the embryos are their only chance at having genetic children, while the other isn’t comfortable with the idea of becoming a genetic parent to their ex-spouse’s child. In other circumstances, neither spouse may want to use the embryos for a future pregnancy but can’t agree on what to do with them.

In an attempt to prevent this issue beforehand, most IVF clinics require couples to sign a contract specifying how they’d like the embryos to be used in the event of a divorce. The options may include:

  • Naming one spouse to gain ownership of the embryos and pursue implantation
  • Donating the embryos to another couple or individual in need of fertility treatments
  • Donating the embryos to a research facility
  • Destroying the embryos

While referring to this contract can be a great starting point for resolving the issue, the parties still might not be in agreement. Arizona has a unique law that may favor the wishes of one spouse over the other

— regardless of what the contract states.

How Arizona law approaches frozen embryos in divorce cases

In 2018, Arizona broke new ground by passing Senate Bill 1393. This first-of-its-kind state law allows frozen embryos to be awarded to the party who intends to use them to create a child when the parties can’t agree on how to use them.

Furthermore, this law states that if both parties wish to use the embryos for a future pregnancy, the court may choose the option that will give the embryos the best chance of success. In either case, any existing contracts between the parties will be overruled should it come to this.

While Senate Bill 1393 may require a nonconsenting party to become a genetic parent to the resulting child, it doesn’t require them to be a legal parent. This means they may not have any rights or obligations to the child, including child support payments and child custody.

Before this law was passed, judges usually referred to the decision the couple made in the original IVF contract. If the contract didn’t contain a divorce clause, or if the parties couldn’t agree on its interpretation, it was left to the judge’s discretion to decide what would happen to the embryos. Most would favor the party who didn’t want to use the embryos.

Seek advice from a family law attorney

Arizona’s unusual frozen embryo law might leave room for added stress and contention in a divorce. If you’re going through a divorce in Arizona and you and your spouse have frozen embryos, a knowledgeable divorce lawyer in Tempe can thoroughly assess your situation and help you make an informed decision about your options. 

Call Blanchette Law PLLC at (602) 881-1748 to learn more and discuss your case.

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