At the outset of your IVF journey your clinic will present you with a packet of forms to complete before undergoing treatment. These forms will ask you to authorize medical procedures, acknowledge risks, agree to terms of storage and out-of-pocket costs, and make designations about the disposition of your reproductive material in the event certain circumstances arise. At best, these fertility clinic forms are agreements between patient and provider. They are not agreements between the parties seeking treatment and they are not always binding in the event one party later changes their mind regarding what happens to the disposition of their genetic material.
An embryo disposition agreement on the other hand can pre-determine what will happen to embryos among parties with shared ownership and dispositional control. Through an embryo disposition agreement the parties can agree to transfer joint ownership and dispositional control to one party individually and address legal parentage of any resulting child. The absence of an embryo disposition agreement is how many couples end up litigating who gets the embryos in the context of divorce.
What Do Fertility Clinic Forms Actually Cover?
Fertility clinic consent forms serve an important purpose. They document your understanding of treatment, authorize medical procedures, and establish certain instructions for embryo storage and disposition.
Depending on the clinic and the forms you sign, your paperwork may address:
- Consent to IVF and embryo creation
- Embryo cryopreservation and storage
- Options for disposition in the event of death or separation
- Embryo donation or disposition decisions
- Storage fees and facility policies
- Authorizations required for treatment and transportation
The exact content varies by clinic, treatment circumstances, and applicable law.
However, fertility clinic forms are not necessarily designed to serve as a comprehensive agreement between two intended parents about their future reproductive options and disposition of their genetic material should their circumstances change.
The question is not whether you signed IVF paperwork. The question is whether the paperwork adequately reflects your intentions and addresses your agreement regarding future options for the disposition of your genetic material in a way that is legally binding.
An Embryo Disposition Agreement Addresses the Relationship Between the Parents
An embryo disposition agreement is drafted with the benefit of independent legal counsel for each party. Embryo disposition agreements address the parties’ rights, responsibilities, and intentions regarding their embryos and parentage of any child born from the embryos.
Unlike a standard clinic form, a legally valid embryo disposition agreement allows the parties to pre-determine which party would retain ownership and dispositional control of the embryos in the event of a number of circumstances, and determine who is a legal parent of any child born from the embryos. These decisions are personal and depend on the relationship and family-building plans of each party.
Depending on the agreement and applicable law, these questions may include:
- Use of embryos: Can one party use the embryos to have a child if the relationship ends? What conditions, if any, apply? Who will be a legal parent?
- Consent: What happens if one person withdraws consent to an embryo transfer prior to the transfer?
- Parentage: How do the parties intend to address parentage if one person transfers the embryos in order to have a child after separation or divorce? What additional legal steps may be necessary?
- Death: What happens to the embryos if one intended parent dies? Both?
- Disposition: Should the embryos be donated, discarded, or continually cryopreserved in specified circumstances?
- Disagreements: How will disagreements among the parties regarding embryo disposition be decided? Which laws may govern?
- Storage and transportation: Who has authority to authorize the transportation of embryos, and what happens if storage arrangements change?
These provisions should be considered carefully and drafted in light of applicable state and federal law. While elections made on fertility clinic forms can offer evidence of the parties’ consent and intent, these documents alone cannot prevent a party from changing their mind. Embryo disposition agreements between two represented parties cannot be amended unilaterally, which is precisely the protection some patients need.
Consent to Treatment Is Not Consent to Parent
One of the most important distinctions in assisted reproduction law is the difference between consent to medical treatment and consent to parentage. Egg donors and gestational surrogates provide consent to assisted reproduction without the intention of being a parent to the child they are helping to be brought into the world.
Signing a form authorizing reproductive treatment does not necessarily determine legal parentage of a child born through assisted reproduction.
New York’s Child-Parent Security Act addresses parentage arising from assisted reproduction, including requirements concerning consent and the intent to conceive and parent a child together in certain circumstances. The relevant requirements depend on the facts of the case, the parties’ relationship, and the applicable statutory framework.
This distinction deserves particular attention when:
- You are an unmarried couple undergoing IVF.
- You are using donor eggs or sperm.
- Your relationship status changes after embryos are created.
- You are considering gestational surrogacy.
- Your original treatment paperwork does not clearly reflect your current intentions.
Your medical records, clinic consents, and parentage documents should work together to reflect your family-building intentions.
Why Embryo Disposition Planning Matters
Embryos can become a source of significant conflict when a relationship ends. One partner may want to preserve the embryos for future use. The other may want them discarded or may object to their use in a future pregnancy. A person may also have concerns about becoming a legal parent to a child born after the relationship has ended.
There is no single answer that applies to every embryo dispute. Courts may consider the parties’ agreements, applicable statutes, prior consent, and other relevant legal principles when determining what will happen to jointly owned embryos. Outcomes vary greatly from jurisdiction to jurisdiction and depending on the facts specific to each case. Addressing these disputes before they arise can be the difference between being able to have a child and not.
If you are undergoing IVF, discussing your intentions with your partner for the planned treatment cycle and for the resulting embryos is invaluable. Committing these intentions to a legally binding agreement is advisable. If you are already separated or divorcing, do not assume that a prior clinic election automatically resolves the legal issues. A review of the existing paperwork can help identify what questions remain open and what legal options may be available. Courts reviewing embryo disputes during divorce look first to the documents the parties signed, which means a thin or contradictory clinic election can decide an outcome neither person intended. Patients who work through the considerations for couples undergoing IVF treatment before their first cycle tend to have far cleaner records than those who sort it out afterward.
Have Your Paperwork Read Before the Next Step
If you are about to sign a clinic packet, or you signed one years ago and have not looked at it since, the elections inside it deserve a careful read. At Oleaga Law LLC, our founding attorney reviews clinic consent forms and other legal documents regarding couples future reproductive rights.
