Modern Fertility Law

It was a pleasure to once again connect with colleagues this November at the SEEDS 2024 Fall Conference! Society for Ethics for Egg Donation and Surrogacy is a nonprofit organization, founded by a group of egg donation and surrogacy agencies, whose purpose is to define and promote ethical behavior by all parties involved in third party reproduction.

The West’s most restrictive law against international surrogacy threatens would-be parents who use birth mothers abroad with jail time and severe fines. Read full article at the Washington Post.

There are an estimated 1 million frozen embryos in the United States right now. With about 50% of marriages ending in divorce, it’s imperative that couples decide ahead of time what to do with cryopreserved embryos in case they decide to part ways. Several cases have dealt with determining the outcome.

Maryland had to determine what to do with one remaining cryopreserved embryo when the parties were divorcing. The court stated: “In the future, to avoid these disputes, we would encourage couples—no matter how hopeful they are as to the future success of their marriage—to ‘think through [all] possible contingencies and carefully specify their wishes in writing.’” There would be a supplemental hearing to determine the husband’s rights and responsibilities if the wife proceeded to successfully transfer the embryo. Jocelyn P. v. Joshua P., 302 A.3d 1111 (Md. App. Ct. 2023)

In Georgia, the court found that the parties’ prior agreement concerning disposition of frozen embryos should be enforced. The parties’ agreement stated that if the parties changed their mind about implanting the embryos in the wife, the embryos would be donated.  Smith v. Smith, 892 S.E.2d 832 (Ga. Ct. App. 2023)

An Ohio Appellate Court ruled embryos aren’t marital property subject to division in divorce. Rather, the court rules that the parties’ interests should be balanced when determining the proper disposition of the 14 frozen embryos. E.B. v. R.N., 2024 Ohio 1455 (Ohio Ct. App. 2024)

The American Society For Reproductive Medicine (ASRM) conducted a study on lawsuits over disputed frozen embryos. The study was an analysis of case law involving disputed embryos since 1980: 43% of cases had no written agreement regarding ownership in event of divorce. In these cases, 40% of the decisions directed destruction of the embryos and 52% directed maintaining them in storage. When an agreement was present and disputed, the courts reversed the expressed intent of the contract in 50% of the cases. These disputes were brought regardless of informed consent agreements prior to the IVF process. But, 1/3 of clinics had no such agreements. (F&S, Volume 118, Issue 4, Supplement)

In California, if an unmarried couple share legal control over the disposition of embryos, they may enter into a written agreement whereby one person renounces all legal interest in the embryos. If they are married at the time of signing the agreement, the agreement shall only become legally binding upon the court’s entry of a final decree of dissolution that incorporates the agreement. California Family Code §7613.

This is a very nuanced area of the law. Therefore, experienced legal counsel should be engaged prior to creating any agreement.

All cases and controversies arising under the Constitution or the laws of the United States end at the Supreme Court. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.