Staff Reports
In the ever-evolving landscape of family law, one of the latest trends causing quite a stir involves something that may seem a bit sci-fi to some — embryos. As the number of Americans opting for in vitro fertilization (IVF) has doubled in the last decade, reaching over one million embryos stored in facilities across the United States, a pressing question has arisen: Who gets to keep the embryos if a couple decides to divorce? It turns out that many couples are now including embryo clauses in their prenuptial agreements to help navigate this complex issue before it spirals into courtroom chaos.
Stephanie Nelson’s story makes this issue personal and relatable. Diagnosed with endometriosis and polycystic ovarian syndrome at 23, she knew she would need the assistance of IVF to achieve her dream of motherhood. After meeting her future husband online in 2019, things moved quickly. They were on the same page about wanting children, and Stephanie, eager to start a family, found herself investing a hefty sum—about $20,000—from her savings for fertility treatments. However, after only four months of marriage, their fairy tale turned sour, leading to a tense five-year divorce battle over the future of their embryos.
During this emotional rollercoaster, the couple experienced what many might call “marital turbulence.” What had started as a hopeful process of creating life transformed into a fight about life and death. Stephanie wanted to keep the embryos, viewing them as her last chance at motherhood, while her ex-husband believed he had the right to choose not to be a parent. Thankfully, the courts ultimately sided with Stephanie, allowing her to keep the embryos since she had paid for them. Meanwhile, her ex-husband declined to share his side of the story, leaving some questions unanswered.
As it turns out, cases like Stephanie’s are not rare, but they often occur without much fanfare or public interest. The law’s treatment of embryos stands somewhere between that of a bank account and that of a person, creating legal gray areas that can lead to unexpected and emotional outcomes in divorce cases. The lack of clear legal precedent means that couples may find themselves embroiled in protracted disputes, with one partner wanting to use the embryos for reproductive purposes while the other seeks to have them discarded. This is where the foresight of a prenuptial agreement can become invaluable.
Lawyers now fervently encourage couples who utilize IVF or are considering it to address this topic upfront in their prenups. Including an embryo clause helps in setting clear rules while both parties are still amicable. After all, no one wants a judge, a stranger in a black robe, to decide something so intimately personal. A prenup can specify who keeps the embryos, how they may be used, and who is responsible for storage costs, thus sidestepping potentially heated battles in the future.
For Stephanie, life has taken a hopeful turn since her battle over the embryos. She is now with a new partner who has stood by her side, supporting her through thick and thin. The couple has been together for four years and are expecting twins, marking a beautiful new chapter for Stephanie. Her story serves as a reminder that when it comes to relationships, especially those with the complexities of IVF, a little planning can go a long way. As the trend of including embryo clauses in prenuptial agreements grows, it seems more couples are learning the value of preparing for the unexpected, even when it comes to the creation of life.
