Blog Opinion Posting – Disposition of Embryos

Embryo Disposition Questionnaire

Why Every Couple Undergoing IVF Should Plan for the Future of Their Frozen Embryos

 

For couples undergoing in vitro fertilization (IVF), the focus is often on hope, family-building, and the medical process ahead.  But there’s another conversation—often overlooked—that is just as important: what happens to remaining frozen embryos in the event of divorce, separation, or death?

 

Embryos created during IVF carry not only biological potential but also deep emotional and legal significance.  As reproductive technology evolves faster than legislation, courts around the world—and in the United States especially—are increasingly being asked to resolve disputes over frozen embryos during divorce or after the death of a partner. The decisions are rarely easy, and the outcomes are inconsistent.

 

Why Embryo Disposition Matters

When couples create embryos during IVF, they are typically asked to decide how unused embryos will be stored and whether they’ll be used in future cycles.  But what many do not realize is that, if the relationship ends or tragedy strikes, those embryos may become the center of a legal battle.

 

Some courts treat embryos as property, governed by contract.  Others weigh them more like potential life and factor in parental rights and responsibilities.  In a growing number of cases, the absence of a clear, written agreement has left decisions up to judges, forcing courts to make life-altering calls that may not reflect the couple’s original wishes.

 

A Preventable Legal and Emotional Conflict

Many of these painful and highly public disputes could be prevented through early, honest conversations and written documentation.  Couples can agree in advance on questions such as:

  • What happens to unused embryos if the couple separates or divorces?

  • May one partner use the embryos to create a child without the other’s consent?

  • Will either partner be considered a legal or financial parent if they are not involved in the child’s upbringing?

  • Who can make decisions if one or both partners pass away?

 

Making these decisions together—before starting treatment—is not only a legal safeguard but a sign of mutual respect and maturity. It can provide clarity, peace of mind, and protection for all involved.

 

A Simple Document to Start the Conversation

To help couples think through these questions, we’ve created a sample Embryo Disposition Agreement Questionnaire.  This document is designed to guide discussion, record shared intent, and serve as a reference if circumstances change.

 

While not a substitute for legal counsel, it offers a helpful structure for documenting important decisions and is a valuable supplement to clinic consents and medical records.

 

You can review and adapt the agreement below to reflect your preferences and values as a couple.

 

 


Embryo Disposition Agreement Questionnaire

To Be Completed Prior to In Vitro Fertilization (IVF) Treatment
Confidential — For Legal and Medical Planning Purposes

Section 1: Participant Information

  • Partner 1 Full Name: ______________________________________

  • Partner 2 Full Name: ______________________________________

  • Date of Completion: ______________________________________

  • Name of Fertility Clinic: _________________________________

 

 

Section 2: Intent to Create and Use Embryos

  1. What is your shared intent in creating embryos through IVF?
    (Select one)
    ☐ To create a child to be raised by both of us jointly during the course of our current relationship. If our relationship ends, our intent to create a child or additional children together also ends.
    ☐ To create a child together, but we are open to one of us using the embryos in the future only as documented below.
    ☐ Other (please explain): _______________________________________________________

  2. In the event that our relationship ends, we agree that:
    (Select one)
    ☐ Neither of us shall use the embryos to attempt conception or birth. The embryos shall be discarded or donated, in accordance with our decision in Section 3.
    ☐ Partner 1 may use the embryos to attempt conception or birth. Partner 2 shall not be considered the legal or financial parent. However, we acknowledge that a court may, in the future, determine that it is in the child’s best interests for Partner 2 to be assigned legal or financial responsibilities.
    ☐ Partner 2 may use the embryos to attempt conception or birth. Partner 1 shall not be considered the legal or financial parent. However, we acknowledge that a court may, in the future, determine that it is in the child’s best interests for Partner 1 to be assigned legal or financial responsibilities.
    ☐ Other (please explain): _______________________________________________________

  3. If one partner wishes to use the embryos for reproduction but the other does not, how should this be handled?
    (Select one)
    ☐ Use is not permitted without mutual written consent.
    ☐ Allow use by the partner who intends to raise the child alone, with the understanding that the other partner will not be considered the legal or financial parent unless a court determines otherwise.

  4. Do both parties agree that the embryos may not be used by either party outside the provisions outlined in this document, unless both parties provide renewed, written consent at that time?
    ☐ Yes
    ☐ No

Section 3: Disposition of Embryos in the Event of Divorce or Separation

  1. In the event of legal separation or divorce, we direct that the stored embryos should be:
    (Select one)
    ☐ Discarded (thawed and not used)
    ☐ Donated to scientific or medical research
    ☐ Donated to another couple or individual (with or without our identities disclosed)
    ☐ Retained and used by Partner 1
    ☐ Retained and used by Partner 2
    ☐ Other (please explain): _______________________________________________________

Section 4: Disposition in the Event of Death or Incapacity

  1. In the event that one partner dies or becomes permanently incapacitated, should the surviving partner be allowed to use the embryos?
    (Select one)
    ☐ Yes
    ☐ No

  2. Do you wish to appoint a legal representative to make decisions regarding the use of embryos in the event of both partners’ deaths or incapacitation?
    (Select one)
    ☐ Yes – Name of representative: __________________________________________
    ☐ No

Section 5: Legal Understanding and Acknowledgment

  1. We understand that this document may be referenced by a court of law to determine our shared intent concerning the use or disposal of our embryos in the event of legal dispute.
    ☐ Yes
    ☐ No

  2. We acknowledge that we have been encouraged to consult with legal counsel before completing this document.
    ☐ Yes
    ☐ No

  3. We understand that the court may refer to this document to determine our shared intent regarding embryo disposition.
    ☐ Yes, we understand and agree
    ☐ No, we do not agree (please explain): ____________________________________________

  4. We acknowledge that our fertility clinic and any legal advisors have encouraged us to consult with independent legal counsel before completing this form.
    ☐ Yes
    ☐ No

Signatures

By signing below, we confirm that we have discussed and agreed to the contents of this document freely and voluntarily. We understand that our decisions may carry legal and ethical consequences, and that these instructions may be shared with our fertility clinic and legal representatives as needed.

Partner 1 Signature: _________________  Date: _____________

Partner 2 Signature: _________________  Date: _____________