The disposition of embryos created through assisted reproductive technology sits at a complex intersection of reproductive medicine, contract law, property rights, family law, and ethics. As fertility treatments become more common, couples must navigate not only the emotional and financial challenges of conception but also the intricate legal landscape surrounding embryo ownership, use, and disposition.
Clinic Consent Forms
Couples first encounter these legal complexities when engaging with fertility clinics through Informed Consent documents. These standardized, multi-page forms outline the medical procedures, risks, and basic disposition scenarios. While necessary to begin treatment, these boilerplate documents typically address embryos as joint property and present simplified scenarios for what happens in cases of divorce or death.
However, these forms have significant limitations. They may ask whether embryos should be destroyed or transferred to one partner upon divorce, or what happens if one partner dies, but they lack depth regarding critical questions: Can a surviving partner implant embryos after their spouse’s death? Would the resulting children have inheritance rights from the deceased? These consent forms function primarily as medical disclosures rather than comprehensive legal contracts, revealing the need for more sophisticated legal planning.
Embryo Disposition Agreements
Unlike standard clinic forms, Embryo Disposition Agreements are true legal contracts designed to provide clarity and minimize future disputes. These agreements should address:
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Consent requirements for embryo use and whether an agent can authorize use if a party becomes incapacitated
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Posthumous use authority and any limitations on who may use the embryos
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Genetic abnormalities and who decides on disposition if discovered
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Financial responsibilities, including storage fees
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Divorce scenarios outlining what happens to embryos and decision-making authority
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Child support obligations if one party uses embryos against the other’s wishes
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Storage and interstate transfer considerations
These agreements must not conflict with clinic consent forms and should coordinate with estate planning documents to ensure consistency across all legal instruments.
State Law Variations and Interstate Considerations
No federal or uniform statute regulates embryo disposition and interstate transfer, creating a patchwork of state laws that has become more complex following the Supreme Court’s Dobbs decision. States have taken dramatically different approaches:
Alabama experienced significant upheaval when its Supreme Court ruled in LePage v. Center for Reproductive Medicine that frozen embryos are “children” under the state’s wrongful death statute. This created such uncertainty that many clinics paused IVF services or moved embryos out of state. The legislature responded with Senate Bill 159, providing temporary immunity for IVF providers and patients.
Louisiana has long recognized embryos as “juridical persons” and prohibits the destruction of viable embryos, though it doesn’t prohibit export, allowing clinics to ship embryos to other states.
California makes it unlawful to use reproductive tissue for purposes other than those indicated on written consent forms and prohibits the sale of eggs or embryos for valuable consideration.
New York requires informed consent that includes notification of all known ways donor reproductive tissue and resulting embryos may be used, though it acknowledges that tissue banks can only make “good faith efforts” to ensure donor restrictions are respected.
Determination of Parentage
Modern reproductive technology has created unprecedented questions about parentage. A groundbreaking New York case involved three individuals seeking recognition as lawful parents of a baby conceived through assisted reproductive technology. The baby had an egg donor (who was married to a fourth person with no biological connection), a sperm provider, and a gestational carrier—all three of whom wished to be recognized as parents. The court granted the petition, ordering all three named as parents on the birth certificate, while explicitly taking no position on the spouse’s potential parental status. This case illustrates the critical importance of all parties discussing and documenting their wishes regarding parental rights, child support obligations, and inheritance rights.
Court Decisions on Embryo Disposition
When couples divorce with unused frozen embryos, courts have consistently turned first to existing agreements:
California courts enforced clinic consent forms where a couple had agreed to discard embryos upon divorce, even though the wife, diagnosed with cancer, wanted to use them as her only chance for biological children.
Arizona courts similarly relied on clinic forms that required joint consent or court direction, ultimately ordering donation to another couple when the parties couldn’t agree.
Pennsylvania faced a case without a signed agreement and applied a “balancing approach,” weighing the wife’s compelling interest in her only chance at genetic parenthood against the husband’s concerns about involuntary procreation, ultimately favoring the wife.
Planning Ahead
Embryo disposition requires deliberate legal planning beyond generic fertility clinic forms. As courts increasingly rely on written agreements to resolve disputes, clear and coordinated documentation across clinic forms, disposition agreements, prenuptial agreements, and estate plans is essential. This comprehensive approach reduces uncertainty, minimizes conflict, and ensures personal intentions are respected in this rapidly evolving area of law.
*This article is a summary of “Planning With Embryos,” which originally appeared in the September 2026 issue of Trusts & Estates.