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IVF: No longer new, but still a complex issue in divorce

Many North Carolina couples dream of having children. They cannot wait to become mothers or fathers, but infertility is a very common challenge that couples face.

Thankfully, couples in these situations now have several options available to them to welcome a child into the world, with one of the most common being in vitro fertilization (IVF). For many couples, IVF is a solution – however, it can become a serious problem if couples decide to divorce.

Disputes over IVF are more common in divorces nowadays

In 2017, the Centers for Disease Control and Prevention (CDC) reports that couples engaged in 87,535 embryo freezing or banking cycles. But what happens to those embryos if the marriage ends in divorce?

The answer is not as straightforward as one might think.

A case in Arizona involving this very issue gained national attention in 2019. Rubi Torres wanted to have children using the embryos she froze while she underwent cancer treatment. Her ex-husband opposed this. This led to a complex lawsuit that ended up in the Arizona Supreme Court. And in January, the Court ruled that Torres could not use the frozen embryos. Instead, the embryos would be donated.

This case is not the first of its kind, and it will certainly not be the last, with how common IVF is nowadays.

Why are these disputes so complex?

Spouses who use IVF face serious issues in the event of a divorce. The primary issues often include:

  • Legally, embryos are considered property. So, who has a right to the embryos?
  • How will child custody or child support factor into the equation if one spouse uses the embryos – even if the other spouse does not want children with their ex-spouse?
  • What does the IVF paperwork say?

Generally, the IVF process requires spouses to complete paperwork that directly addresses what will happen to embryos if one spouse passes away or the marriage ends in divorce. However, as demonstrated in Arizona, these agreements might not always be legally binding if it leads to a legal dispute.

This is still a relatively new aspect of family law. It is so new that there are currently no federal or North Carolina laws that address this matter.

There is no doubt that this situation is incredibly emotional for any couple. Spouses facing a divorce should consult a divorce attorney to ensure they understand their rights in these cases.