Legal Advice During Embryo Creation is Essential
Deciding to start or grow your family is an exciting and hopeful time. If you are growing your family through assisted reproduction you have a lot to think about before you move forward with fertility treatment. Most people who want to have a child hope to move forward as quickly as their clinic will allow. However, undergoing fertility treatment and creating embryos with a partner or a donor come with lasting legal implications that impact future reproductive options and the possibility of having a biological child. Rushing through these decisions and failing to consider the long-term implications can have lasting consequences on your family-building plans. A conversation with counsel before your fertility treatment begins protects your future reproductive options and the family you hope to build.
The Legal Questions Start Earlier Than People Expect
When it comes to IVF, embryos are created through a medical process in which an egg is fertilized with sperm outside the human body. What people don’t realize is that while this is a medical process, it carries legal implications.
When two people combine gametes and cryopreserve the resulting embryos, there exists inherent questions about ownership and dispositional control of the embryos, future use of the embryos in the event of a disagreement or certain circumstances, and who will be recognized as a legal parent of any child born from the embryos. Couples rarely disagree during treatment; the goal is to have a child.
Issues and disagreement tend to surface later, during a separation, a divorce, the death of a partner, or a change of heart about growing the family. Waiting until these issues surface is the most difficult time to address what you intended at the outset of your family building, and whose position should dictate the outcome.
At Oleaga Law LLC, our founding attorney counsels individuals and couples on options for embryo disposition and donation while all options remain possible so the parties can make decisions and dictate disposition with informed consent.
What New York Law Recognizes
The Child-Parent Security Act addresses embryo disposition agreements directly. Under Family Court Act 581-306, an agreement between intended parents who share dispositional control of an embryo is binding when it is in writing and when each intended parent had the advice of independent legal counsel before signing. For married intended parents, the transfer of legal rights and dispositional control takes effect upon a decree or written agreement of separation, three years of living separate and apart, divorce, or death.
The statute also separates two things patients tend to blend together. Who controls the embryos is one question. Who becomes a legal parent is another. An intended parent who transfers dispositional control is not a parent of a child later conceived from those embryos unless the agreement says he or she consents to that role, and such consent is not later withdrawn.
Clinic Forms Are Not a Substitute
IVF clinic forms exist to document medical consent and storage terms. Clinic forms are not drafted to resolve a disagreement among individuals regarding their embryos five years after a relationship ends, and the checkboxes frequently do not match the parties’ precise intentions. A New York reproductive lawyer can read and incorporate the designations made on your clinic forms in an embryo disposition agreement drafted to memorialize your precise intentions regarding the future ownership and disposition of your embryos and the future parental rights of any resulting child.
Decisions Worth Making Before a Cycle Begins
Partners should reach an understanding on each of the following, in writing before their first IVF cycle is complete:
- Which party retains ownership and dispositional control of the embryos after a separation or divorce;
- Whether the party relinquishing ownership and disposition control will be a legal parent of any child resulting from the embryos;
- What happens to remaining embryos if one partner dies;
- Whether donation to another individual or couple for procreation is acceptable;
- How long embryos remain in storage while a decision is unresolved; and
- Who pays storage fees, and what follows if those payments stop.
These are difficult conversations. They are considerably harder after a relationship ends. A standalone embryo disposition agreement records those answers while both partners still agree.
Unmarried Partners Have More to Settle, Not Less
Marriage carries legal presumptions. Unmarried couples do not have those protections to fall back on, so intent has to be documented rather than assumed. The same holds for same-sex couples, single parents by choice working with a directed donor, and trans and nonbinary intended parents. Our firm serves families of every structure regardless of gender identity, sexual orientation, relationship status, number of parents, or genetic connection to the child.
Talk It Through Before You Sign
Janene Oleaga is admitted in New York, Connecticut, Maine, and New Hampshire, and she works with local counsel for families building elsewhere. If you are preparing for IVF, revisiting old clinic paperwork, or facing a change in your relationship, contact our firm to speak with a New York reproductive lawyer about protecting your future reproductive options.
