Blog Opinion Posting – Disposition of Embryos

Embryo Disposition Questionnaire

Why Every Couple Using In Vitro Fertilization Should Plan for the Future of Their Frozen Embryos 

When a couple begins in vitro fertilization, they are focused on having a baby.  The goal is to create life.  Most couples do not think about what may happen to their frozen embryos later.

 

But life does not always go as planned.  Couples may separate.  A partner may pass away.  Without a clear plan, frozen embryos can lead to painful legal disputes.

 

 

Frozen Embryos Can Become a Legal Issue

 

Embryos created during in vitro fertilization carry emotional and legal meaning. If something happens to the couple, the courts may get involved.

 

In the United States and in other countries, courts are often asked to decide what happens to unused embryos.  There are no clear rules.  Some courts treat embryos like property.  Others treat them as potential life.  Judges must decide, and the result is not always what the couple would have wanted.

 

Laws about embryo disposition are not the same everywhere.  Each state and each country may have different laws.  That is why it is very important for intended parents to speak with a lawyer who understands family and fertility law in their area.

 

 

You Can Avoid These Problems

 

Couples should talk about their wishes before starting treatment. It is not easy, but it is important.  These questions can help guide the conversation:

 

  • What happens to the embryos if we break up?

  • Can one person use the embryos without the other person’s consent?

  • Who will be the legal parent if a child is born?

  • What happens if one or both of us pass away?

 

Documenting your answers may help avoid problems later.

 

 

A Simple Tool to Start the Conversation

 

We created a document to help couples begin this conversation.  It is called the Embryo Disposition Agreement Questionnaire.  It includes the key questions couples should ask each other.

 

This document is not a legal contract. It is not a substitute for legal advice.  It is only a starting point to help couples begin thinking about these issues.  After completing the questionnaire, intended parents should speak with a qualified attorney.  An attorney can help draft a valid legal agreement that reflects the couple’s wishes and complies with the laws in their state or country.

 

Fertility agencies can also help.  They can send this questionnaire to intended parents early in the process.  This helps couples think ahead and ask their lawyer for advice.  It shows that the agency cares about the family’s future.

 

Make Your Wishes Clear

Frozen embryos are more than just medical material.  They may become part of your estate.  If you do not make a decision, your family may have to.  That is a heavy burden to leave for your children or relatives.

 

Intended Parents can prevent legal battles and possible hardship to their children by taking action now:

  • Write down your wishes.
  • Speak with a lawyer. 
  • Plan ahead.

 

A little preparation today can protect everyone involved in the future.

 


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: _____________