Fertilized Embryos and Divorce: An Update in New York

The number of couples having children with the help of assisted reproductive technology, such as in-vitro fertilization, has nearly doubled over the past decade. This is understandable, as couples are getting married and starting families later in life. 

At the end of a successful in vitro process, couples often produce more than one fertilized embryo. These “residual embryos” can be stored at the fertility clinic (for an impressive number of years) for the couple to use in the future. 

As family lawyers, the issue we see more and more clients face is how to handle those residual embryos in the event the couple terminates their relationship. Up until 2021, there was no opportunity for couples to reach an agreement, outside of the contract they entered into with the fertility clinic, as to their desired outcome for those “residual embryos.” 

Fortunately, for New Yorkers, the Child-Parent Security Act was enacted in 2021, allowing parents to enter into an Embryo Disposition Agreement (“EDA”). A properly executed EDA transfers legal rights and dispositional control of the residual embryos to one intended parent. 

Under the new law, an Embryo Disposition Agreement is a potential mechanism for securing two major objectives: 

1. The parent to whom legal rights and control of the embryo(s) is transferred will now be able to preserve the opportunity to grow their family in the future; and

2. The parent transferring their rights and control of the embryo(s) can be released from the obligation to support the child(ren) born from a residual embryo, both physically and financially. 

For an EDA to be binding it must meet the following requirements: 

1. It must be in writing; 

2. Each intended parent must have the benefit of legal counsel; and

3. Where the intended parents are married, the transfer of legal rights and dispositional control occurs only upon divorce. 

We counsel clients on the advantages of entering into an Embryo Disposition Agreement, both in divorce matters and within the context of family planning while drafting and negotiating prenuptial agreements. 

Please contact us at consultations@artesezandri.com if you have questions about the family law aspects of assisted reproductive technology. We offer free consultations to help you with your planning needs.