08 Jan What happens to stored embryos in a divorce?

Q. My wife and I have no children but we have been trying to get pregnant through in-vitro. If we divorce, what happens with everything we have in storage? I want to have children but if we split up I don’t want her to have my child. Would I have to support a kid if she had one without me agreeing to it? I’m concerned about child support.
— Unsure

A. Your right that having a child is a big, life-changing event.

It can also require a large amount of money.

The disposition of frozen embryos is one of the more complicated divorce-related issues.

The specific facts of each case, including whether there is a written agreement between the parties directing the manner in which frozen embryos will be treated in the event of divorce, would guide a court’s decision, said Thomas Roberto, a family law attorney with Adinolfi, Roberto, Burick & Molotsky in Mount Laurel.

He said the rule implemented by the New Jersey Supreme Court in such cases is to “enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos.” This is stated specifically in J.B. v. M.B., 170 N.J. 9 (2001).

“If the couple enters into a dispositional agreement at the time the in vitro process begins, New Jersey courts may simply enforce the terms of the agreement,” Roberto said. “If the parties enter into a contract providing that the embryos will be preserved, donated or destroyed in the event of divorce, a court may be inclined to uphold the terms of the contract.”

There are, however, other factors a court will take into consideration, he said.

“If one party has a change of heart and refuses parenthood, a court may consider public policy considerations, the right to procreate as well as the right not to be `forced’ into parenthood, and the specific facts of each case,” he said. “Such factual considerations may include the availability of adoption services, and whether one or both parties would be unable to conceive if the embryos were destroyed.”

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This story was originally published in January 2024.

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