What happens in today’s day and age when people who received medical assistance to get pregnant have embryos in storage and get a divorce? Naturally, this question comes with a lot of sensitivity yet needs to be addressed in a divorce proceeding.
Certain countries recognize the frozen embryos as “marital property” while others may not. If the country recognizes the frozen embryos they “may” be able to be divided like any other property associated to the marital estate. The unfortunate part is the couple may be subject to the laws of their country of residence. This is an evolving area of divorce. Parties going through a divorce may contest the divorce. One person may want the frozen embryos handled in a certain way which may conflict with how the other party wants them handled.
The medical treatment centers usually require the couple to authorize a consent form indicating how the embryos will be handled upon someone passing away. These forms may not request the couple to direct what happens to the embryos if the couple gets divorced. If the consent form does address the issue of divorce, it may (or may not depending on your country’s laws) be viewed as a contract and govern how the embryos are handled in the divorce proceeding. If the contract does not address the issue then it must be clearly defined in the divorce decree.
Some questions to think about in context to frozen embryos in a divorce setting:
- Can one party change their mind based on what they authorized on the original consent form?
- If both parties seek to dispose of the embryos how should that process be handled?
- What happens if one party wants to sell the embryos? How do you place the value of an embryo?
- Do you need to measure the quality of one embryo over another to decide who gets which embryo and its related value?
- Is a court order required for the “steward of the embryos” (i.e the medical center) to release the embryos or is the divorce decree sufficient to direct the handling of the embryos?
- Was there a time frame associated with the original consent form?
- Is there a statute of limitations how the embryos will be managed?
- What if one party receives the embryos and then gives birth later to one or more of them? Who is the legitimate parent of the embryos if they are born? Who has child custody rights? Who is financially responsible for the newborn children? These details matter and have to be clearly ironed out through the divorce process.
- Is the man in the relationship considered the “donor” to the embryo? If yes, does the “donor” need to provide formal consent how the embryos are used?
- Is it possible to define the future parenting rights of an embryo even if the child has not been born yet?
- What happens if the couple lives in different countries? Which country takes precedence? Is it the one where the embryos are stored?
- What happens if both parties moved away from the country where the embryos are stored? Which country’s laws govern this type of scenario?
Certain countries have guidelines — such as the Assisted Human Reproduction Act — around these matters. Yet many questions still loom in context to a divorce setting. It is important to ask all of the questions that can arise and handle them appropriate in context to your divorce. Otherwise you may find you lost control over the decision process. Given the sensitivity of the issues you want to remain in control over all of these matters.
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.