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What happens to a couple’s frozen embryos after divorce?

On Behalf of | Apr 19, 2024 | Divorce |

On February 16, the Alabama Supreme Court declared that the state’s Wrongful Death of a Minor Act applies to frozen embryos. Applying this law means an embryo has the same right to life as a child.

The decision has significant implications for any couple undergoing in vitro fertility treatments, but especially for those going through a divorce after beginning the process.

What led to the decision?

The case began with three couples who underwent IVF treatment at a fertility clinic in Alabama. After giving birth to healthy babies, the couples had additional embryos cryo-preserved at the clinic for future use.

In December 2020, a patient at the hospital where the clinic was located entered the cryo-preservation unit and accidentally destroyed some embryos. The couples sued the clinic and the hospital under the Wrongful Death of a Minor Act. Because this law dates back to 1872, the Supreme Court reviewed the case and determined that an embryo has the same legal standing as a child.

How does the law affect divorced couples?

For couples going through a divorce, the ruling raises complex legal questions about the fate of their frozen embryos. Previously, the court considered these embryos as property. Couples could divide or dispose of them in whatever way seemed best, including having the hospital or clinic destroy them.

However, with the court now recognizing embryos as persons under the law, the situation becomes more complicated. Couples who do not wish to give birth to more children have the following options for dealing with unwanted embryos:

  • Store them indefinitely
  • Implant them at a time when they are unlikely to result in pregnancy
  • Allow other couples to adopt them

Implantation of adopted embryos had a 41% success rate in 2021 and various religious groups promote this practice. However, some people are uncomfortable with the idea of strangers giving birth to their biological children. Genetic defects may also make some embryos ineligible for adoption or even unviable.

Alabama’s new ruling further complicates the already complex divorce process. However, as House Democrats seek a constitutional amendment and other groups fight to change the law’s interpretation, the situation is in flux. All that divorcing Alabama couples can do for now is stay informed and adapt to changing laws that affect the fate of their frozen embryos.