Art’s Unintended Consequences In Divorce

Assisted Reproductive Technologies (ART) are often considered as a way for Intended Parents to create a family. Sometimes Intended Parents separate and file for divorce, and their good intentions lead to complex and difficult choices. When Intended Parents utilize ART, they create genetic material that may be considered property by a court if those two people divorce. This property includes frozen eggs, sperm and embryos. It then becomes necessary to determine the use, and/or value of this property, as it will continue to exist even if the parties’ relationship with each other does not. Intended Parents should be mindful of this possibility, and proactively address the use and/or storage of their genetic material at all times.

Before Intended Parents Utilize ART:

A post-nuptial agreement or contract designating the use and disposition of stored genetic material can avoid many of the pitfalls that arise if divorce occurs. For example, a couple can agree that any frozen embryos will require both parties’ consent for future use, or that the genetic material should be destroyed or donated in the instance that they separate. Clinics often require parties to sign numerous consents, authorizations and/or disposition agreements. Because they vary in their depth and completeness, Intended Parents should be overly cautious and insist on a clear and comprehensive agreement between the parties. To further help ensure enforceability, each party to the agreement should be advised by independent counsel. This is especially important if either party wishes to avoid the use of their genetic material for purposes of procreation after separation.

When Intended Parents File for Divorce:

It is important to address the use and control of genetic material as early as possible in a dissolution proceeding. Some courts have found a right to value genetic material as property. Other courts have taken infertility treatments into consideration when determining the lifestyle of the parties, which is an important factor for spousal support calculations. The greatest of unintended consequences could occur, however, if these assets are not identified and awarded. Under such circumstances, the possibility remains that a clinic, unaware of the parties’ changed marital status, facilitates the use of stored genetic material. In this scenario, either party could unknowingly become an unwilling parent. Until, of course, they receive a request for child support. Accordingly, fertility clinics and/or storage facilities should be notified immediately upon the commencement of a divorce proceeding.

There is no consensus amongst courts with respect to the disposition of genetic material. However, if you are either contemplating utilizing ART or divorcing after having created and/or stored genetic material, consulting with an attorney may help you avoid unintended consequences.