Modern fertility treatments have helped many couples in Garden City and across New York build families through in vitro fertilization (IVF). But when a marriage ends, one deeply personal and legally complex question can arise: what happens to frozen embryos created during the relationship?
Unlike traditional property or custody issues, frozen embryos exist in a gray area between potential life and personal property. When spouses disagree about their use or disposal, courts must balance sensitive matters of science, contract law, and reproductive rights.
Why Frozen Embryos Create Legal Challenges
Disputes over frozen embryos are emotionally charged and legally complicated because they involve two conflicting rights — one person’s right to become a parent and another’s right not to.
If a couple separates and one spouse wants to use the embryos to have a child while the other objects, the court must decide whose wishes prevail. These cases often center on consent: no one should be forced into parenthood against their will, but destroying embryos may mean the loss of someone’s only chance to have a biological child.
Because embryos are neither property nor persons under the law, courts treat them as unique entities requiring special consideration.
What New York Law Says About Frozen Embryos
New York has no specific statute governing frozen embryos in divorce. Instead, courts rely on contract law and past decisions to resolve disputes.
The most influential case, Kass v. Kass (1998), established that written agreements signed with fertility clinics should control what happens to embryos. In that case, the couple agreed that any remaining embryos would be donated for research purposes if they were to divorce. The New York Court of Appeals upheld that agreement, emphasizing the importance of prior consent.
In other words, courts generally honor the couple’s original agreement with the fertility clinic. When that contract clearly states the parties’ intentions, the outcome is usually straightforward.
How Fertility Clinic Agreements Affect Divorce
Before undergoing IVF, most couples sign a consent form or storage agreement specifying what should happen to embryos in certain circumstances, including divorce.
Common options include:
- Granting one spouse control over the embryos.
- Requiring the embryos to be destroyed upon separation.
- Donating embryos to another couple or for medical research.
When these agreements are detailed and signed voluntarily, courts tend to enforce them. However, disputes still arise if one spouse later changes their mind — particularly if their life circumstances have changed since the agreement was signed.
What Happens When There’s No Clear Agreement?
If no written agreement exists or if the document is vague, courts must balance competing interests and public policy concerns. In most cases, New York judges favor the right not to procreate when one party objects to the embryos being used.
Courts may consider factors such as:
- Each spouse’s ability to have biological children through other means.
- The emotional and financial investment in the IVF process.
- Whether one spouse relied on the embryos as their only remaining opportunity for biological parenthood.
Still, the absence of an explicit agreement often leads to uncertainty, litigation, and emotional strain — another reason these cases require careful legal guidance.
Why Legal Counsel Is Essential in These Cases
Disputes over frozen embryos combine elements of family law, contract interpretation, and medical ethics. The outcome can have lifelong consequences, both emotionally and legally.
At Aiello & DiFalco, we assist clients in Garden City in navigating these complex issues with discretion and sensitivity. Our attorneys can:
- Review and interpret fertility clinic contracts.
- Advise on how New York courts are likely to view specific agreements.
- Negotiate or mediate disputes over reproductive materials.
- Advocate for your reproductive rights during divorce proceedings.
Because these cases involve deeply personal choices, having legal representation ensures that your intentions are clearly communicated and protected.
How to Protect Your Rights Before and During Divorce
If you are considering or undergoing fertility treatments, there are proactive steps you can take to minimize conflict later:
- Review clinic agreements carefully. Ensure that both spouses understand what will happen to the embryos if you separate.
- Put your wishes in writing. Specify your preferences for future use, destruction, or donation.
- Revisit agreements if circumstances change. If you move, separate, or complete your family, update your documents accordingly.
- Address reproductive materials in divorce settlements. Make embryo disposition part of your final divorce agreement.
Taking these steps early can help avoid confusion, delay, and heartache if the marriage ends.
Clarity Today Protects You Tomorrow
Frozen embryo disputes raise some of the most challenging questions in modern family law. In New York, courts generally honor agreements made at the time of IVF, but when those documents are unclear or absent, outcomes depend on careful legal argument and sensitive handling.
If you’re facing divorce and have questions about frozen embryos or other fertility-related issues, the attorneys at Aiello & DiFalco can help. Contact our Garden City office today for guidance on your unique circumstances.
