Recent advances in assisted reproduction technology have made it more common for a divorcing couple to possess genetic material. A divorce may ignite questions such as whether an ex-spouse may use the couple’s genetic material in the future or whether an ex-spouse can unilaterally decide to destroy such genetic material. Generally, an ex-spouse needs permission from the other to use shared genetic material, such as an embryo, to procreate. Spouses who cannot agree on what to do with genetic material may have the issue decided by a court. While the issue of genetic material in divorce is relatively new, three distinct approaches have taken shape: the contractual approach, the contemporaneous mutual consent approach, and the balancing test approach.
The Contractual Approach
Courts who use the contractual approach place the most emphasis on existing assisted reproduction contracts. This approach has appeared in California and New York courts, among others. Assisted reproduction contracts are common in many clinical settings, such as in vitro fertilization clinics. A couple will typically sign an agreement with the clinic addressing how to store or dispose of their genetic material. Sometimes these contracts specify what will happen to the material if the couple divorces, although the contract may lean more toward protecting the relationship between the clinic and the parents than the relationship between one parent and the other.
Finkelstein v. Finkelstein
In Finkelstein v. Finkelstein, a husband filed for divorce and moved to prevent his wife from destroying, using, or preserving their one remaining embryo from their unsuccessful in vitro fertilization attempts. The IVF contract that the parties had signed with the clinic explicitly provided that either party could at any time withdraw their consent to participation. The New York court found that the husband was clearly entitled to revoke his consent under the contract. It was irrelevant that the remaining embryo might represent the wife’s last chance to have a biological child.
The Contemporaneous Mutual Consent Approach
Under the contemporaneous mutual consent approach, either party may change their mind and revoke consent to use their genetic material up until the point when the material is actually used or destroyed. This approach favors a potential parent’s right to change their mind in matters concerning family and procreation.
In re Marriage of Witten
The Supreme Court of Iowa in In re Marriage of Witten found that an ex-husband’s change of mind about the use of shared embryos overruled his signature on an IVF mutual consent agreement. The court noted that public policy favored keeping decision making authority with the parties who created the embryo, since the decision to become a parent is highly emotional and subject to change. Until the embryos were actually used or destroyed, the ex-husband was free to revoke his consent.
The Balancing Test Approach
The balancing test approach weighs the interests of both parties in a dispute over genetic material. Under this approach, a court may consider such factors as whether the shared material represents a party’s last chance to have a biological child. For example, a court may award an ex-wife shared embryos after cancer treatment rendered her infertile. However, other courts consider the right not to procreate stronger than the right to procreate.
J.B. v. M.B.
In J.B. v. M.B., an ex-husband moved for preservation and possible use of embryos shared with his ex-wife. He told the New Jersey court that before IVF, his ex-wife and he had agreed that unused embryos would be donated to infertile couples. Instead, the ex-wife wanted the embryos destroyed. The court found that the ex-husband had a right to procreate, just as the ex-wife had a right not to procreate. However, there was no evidence to suggest that the ex-husband was incapable of fathering another child. Therefore, enforcement of the ex-wife’s right not to procreate would not seriously impair the ex-husband’s right to procreate. The court ordered the embryos destroyed.
Separate and Third-Party Donor Material
Most genetic material disputes involve shared embryos, a combination of genetic material from both spouses. However, a divorcing couple may have acquired genetic material from only one spouse or a third party during their marriage. Disposition of these materials may be somewhat easier. For example, a donor ex-husband would probably have full control over his frozen sperm and would be able to prevent his ex-wife from using the material. On the other hand, if the frozen sperm was that of a third-party donor, it would probably be marital property for division.
Genetic material will likely be subject to some form of contract, either between the donor and the recipient(s) or between the recipient(s) and a clinic. These contracts sometimes state who owns the material or what will happen to it upon divorce.
Most couples who choose to procreate do not do so anticipating divorce, but considering what may happen to genetic material in the event of divorce can save a couple much time and stress in the future. Even if a couple signs an agreement with their assisted reproduction clinic, they may best preserve their own desires by signing a separate agreement between themselves specifying their intent. Divorcing couples with genetic material should consult with an attorney because case law is still developing and varies by state.