Many Texas couples want to have children. For some, the route includes in vitro fertilization. However, in some cases the marriage might come to an end before the parents choose to implant the embryos created during the IVF process. In those cases, the question about what happens to the embryos after a divorce may arise.
While IVF is increasingly an option for many would-be parents, what happens if these embryos are created and not used during a marriage does not have a clear answer. While courts generally consider embryos to be personal property of the parents, the decision of what to do with the embryos after the end of a marriage is not handled the way most property is. In most cases, courts believe that one person cannot force another to become a parent. The fight over the embryos can often last years. In the meantime, parents would need to keep up their storage fee payments to the fertility facility or risk finding out that the embryos the couple is arguing over no longer exist.
When parents begin the IVF process, they sign a contract that stipulates what will be done with the embryos if the parents die or the marriage dissolves. The options usually include to continue storing them, destroying them, donating them to someone else, or donating them to science. However, there is debate on how binding the documents signed at the fertility facility actually are. Additionally, courts have also begun examining any extenuating circumstances, such as the chances of one of the ex-spouses becoming a parent without the embryos.
This type of situation may become more common. Ideally, the couple's respective family law attorneys could assist in negotiating an agreement on this matter that would take it out of the hands of a judge.