In vitro fertilization has become a frequent answer for couples seeking to overcome infertility or other challenges to create their families. But when spouses have frozen preembryos through IVF treatment, difficult legal issues can arise if they divorce.
Florida IVF law
The Sunshine State is one of only a handful of states with a statute specifically addressing frozen embryos. Under this law, the “commissioning couple” that seeks IVF must enter a written contract with the treating doctor. This agreement must direct the “disposition” of preembryos if the marriage ends.
They could assign control of all or some of them to either divorcing party. Other options may include disposal, donation or giving control to a relative or friend.
If there is no written agreement, “decisionmaking authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.”
Potential disputes over frozen embryos
While this law seems to solve the problem, of course it would not be unusual for a divorcing couple without an agreement to have trouble cooperatively exercising their decisionmaking authority. And even if they have a written contract, once actually faced with its enforcement, either or both may no longer want that outcome.
Or, what if one party challenges the validity or enforceability of the embryo-disposition agreement?
The statute does not say what happens if a dispute arises. It is likely that a divorce judge would consider these issues as part of the divorce proceeding. After all, frozen preembryos suggest legal themes of child custody and also of property division. Because of the legal and practical complexity of these questions, any divorcing spouse with frozen embryos from the marriage should seek legal advice from and representation by an experienced family lawyer.
Legal counsel ideally would have deep knowledge of the evolution of Florida law and policy in this area as well as of how courts are deciding these cases. It may also be possible to negotiate or mediate a resolution with the other spouse.
