By Forbes
Julia Rodgers, CEO of HelloPrenup, champions collaborative prenups and promotes financial communication in marriage.
What happens when a client has unused frozen embryos but gets divorced? Who keeps the embryos? What if one person wants to use them to achieve pregnancy and the other person objects?
The Arizona Supreme Court addressed this issue in Terrell v. Torres, 456 P.3d 13 (2020) when a divorcing couple couldn’t agree on what to do with their embryos. The wife wanted to use them to get pregnant, while the husband preferred to donate them to an unknown third party. The court sided with the husband, meaning the embryos, which were created from the wife’s eggs, were ordered to be donated to another couple.
Why did the court make this decision, you ask? Well, the couple signed off on fertility clinic consent forms, which contained ambiguous language, leading the Arizona Supreme Court to interpret it to mean they agreed to donate to a third party when Torres wished to keep the embryos.
This could have been completely avoided with a prenuptial agreement containing clear and concise embryo disposition language. Let’s discuss the embryo disposition problem and how attorneys can help clients navigate this issue through prenups.
“Embryo clauses in prenups can be an effective tool for deciding what to do with your embryos in a dissolution but they should be carefully constructed to avoid an inherent conflict that could potentially arise between the prenup and any subsequent contract the parties execute through a fertility provider.” – Rose Law Group family law attorney Audra Petrolle
