We Need to Talk – It’s About Our Embryos

Written by Carrie Patterson and Madelyn Kessler

There are currently over one million frozen embryos in the United States.  Who do they belong to?  Generally, when hopeful parents undergo IVF treatments, they are told that they should hope to create as many healthy embryos as possible. The more healthy embryos they create (the advice goes) the better their chances that their dreams of parenthood will materialize. But, what happens when one couple creates more embryos than they ever intend to use? Or, even more complicated, what happens to embryos if the couple separates before using all the ones that they had intended to use? In this article, we will discuss parental rights in Virginia.

Having a Discussion When Embarking on IVF as a Couple

When people embark on the process of IVF, they are usually at a family planning stage when they have some level of desperation setting in.  Maybe one of the partners has been diagnosed with cancer and is about to start potentially fertility-inducing treatment; maybe the couple has tried for years and has finally saved up the money to undergo the process of IVF that they feel may be their last chance of achieving their family.  In any case, in the beginning, couples are rarely thinking about their relationship falling apart, or how a disagreement over whether or not an embryo will be implanted may arise. But, those disputes do happen. For those of us who are trying to help couples navigate the legal system, it is troubling how little people know about how the law works to resolve disputes over their embryos and how few of the couples have these serious discussions before the dispute has arisen.

What Does the Law Say on Embryo Ownership in Virginia?

In most states, like Virginia, the legislature has not enacted any laws that pertain to disputes over stored embryos. Recently, Carrie Patterson confronted this complex and novel legal issue when she was asked to represent a former husband whose former wife filed a lawsuit asking the Court to partition two frozen embryos they had left over from a cycle of IVF they underwent during their marriage. In her lawsuit, the former wife asked the court to award her one (or both) of the embryos to have more children. The former husband, who did not agree with her using either embryo, raised important defenses based on his constitutional rights to privacy and personal liberty.

Is a Father Responsible for Child Support on Children Conceived from Embryos After Divorce in Virginia?

When weighing the former husband’s rights to object, the first question that most people ask is – would he be financially responsible for the child? The answer is no. Well, not unless he consents and accepts financial responsibility. Virginia’s assisted reproductive statute makes clear that if implantation occurs after a divorce is underway, the divorcing party is not a parent of any resulting child unless he or she consents in writing to being a parent.

Parental Rights in Virginia to Embryos After Divorce

So, if he did not have any required responsibility for the child, does he still have a basis to object? The answer is yes. For many prospective parents, even those who have utilized assisted reproductive help, it is shocking to learn that they could, in the future, have to fight to maintain control over when, whether, and how they become parents. Yet, that is exactly what they face in these lawsuits. Alarming right?

How Might a Virginia Court Get Involved with Embryo Ownership?

Whether a court could put you in a position of parenthood without your consent is a practically unprecedented legal question, arising now only because of the increasingly popular and common use of IVF. This fast-growing field leaves many states ill-equipped on how to handle such legal disputes. For couples living in states without specific statutes addressing embryo disposition, the only path forward is through court using laws already on the books that were passed well before the technology.

In undertaking this recent representation in Fairfax, Virginia, Carrie researched the laws across the country and worked with reproductive health experts to try and understand the legal landscape.

Do Virginia’s existing laws provide an avenue for a court to award an embryo to a former spouse without the other spouse’s consent and, if so, how?

Notably, the Fairfax case presented a particularly novel and tricky legal issue because the former wife was asking for the embryos to be divided through Virginia’s partition law. Partitioning refers to dividing property into equal parts among those with interests. Traditionally, partition laws were used to divide land or, more uncommonly, jointly owned personal property.

Virginia Law on Partition Statues and Embryos in Virginia

No court in Virginia (or in any other state or jurisdiction of the United States) has ever used the partition statutes to resolve questions concerning the future use and disposition of human embryos. Carrie ultimately argued that the partition remedy, which only allows the court to either make an equal division of property at issue or to sell the property and divide the proceeds, is an entirely unworkable mechanism for resolving disputes over human embryos that carry with them the potential for life[1].

Virginia Law on Equitable Distribution and Embryos in Virginia

There have been other Virginia cases that have dealt with this issue in the context of a divorce. In divorce proceedings, the court does have to make an equitable division of each spouse’s interest in human embryos as part of applying the equitable distribution statutes. What Carrie found was that, in Virginia, once the court decides that it is legally able to resolve the dispute, the Court gives preferential deference to existing contracts that govern the disposition of the embryos. It is only if the court cannot find a valid and binding contract concerning how the embryos are to be handled post-divorce, does it then move on to considering the important fundamental interests of each prospective parent by applying a delicate balancing test, weighing the interests of the party who wishes to use the embryos against the interests of the party who does not wish to have additional children.

Let This Be a Warning – Get a Legal Agreement on Embryo Ownership

At the family planning stage, the thought of the family falling apart is often the last thing that couples want to consider. For couples who enter IVF, however, overlooking these important considerations can have permanent and life-altering consequences. Think about it this way – individuals and couples are frequently advised to protect their individually and jointly owned assets through legal agreements. Why? Legal agreements provide certainty. Nowhere in the law is this more important than in areas where the law is still unchartered and no one can be certain what it will develop into, or how those developments may change rights and legal status.

Evaluating Legal Agreements During the IVF Process

It is possible that people already have binding contracts that they do not even know about. The clinic often provides forms that have couples choose what the clinic should do in circumstances such as death or divorce, but these forms are not accompanied by any legal advice and often are drafted by the clinic to protect the clinic, not the prospective parents. They come in a packet of forms that accompany all of the other forms necessary to start an IVF cycle. It is not outside of the realm of possibility that couples overlook the form, or only one of the partners completes it. If these are the very contracts that the court is ultimately going to look back on as binding and enforceable on whether someone has any say later in what happens to their embryos, isn’t it important that people know what they are signing?

As this case exemplifies, the absence of any legal agreement that dictates what should happen to embryos upon separation has the power to land couples in court where they will hand the decision entirely to a judge who also has very little law to guide him or her. On the other hand, signing an agreement that will determine your future ability to have children (or not) that you did not understand would be permanent and binding is equally as distressing.

Post-Nuptial Agreements with a Family Lawyer for IVF and Embryos in Virginia

To properly protect the procreative interests of the individuals entering IVF, clients should be informed, fully, before signing any ownership forms. Additionally, couples should be clear and direct about their expectations for the use of the embryos given any number of unexpected life events. Current science allows for embryos to be preserved longer than any given lifetime. It’s hard, yes, to think of the absolute worst circumstances that could happen to a relationship or family, but it is even harder to lose control when you need it most.

Parental Rights in Virginia

Although it may be difficult to consider the worst-case scenarios for a relationship or family, the rapid development of IVF technology has outpaced legal frameworks. Having an agreement in place in advance can provide you with much-needed certainty and security as you embark on one of life’s most rewarding and important journeys. The best thing that you can do for yourself, and your future family, is to talk about these issues and engage an attorney to draft a legal agreement that you have considered thoughtfully and carefully.

[1] As of the publication of this blog, the case remains under advisement.