What happens to stored pre-embryos during a divorce?

For many couples, fertility and the journey to conceive a child can be complicated and stressful. Often, couples need to seek outside help from fertility doctors to help them reach their goal of having a child.

Unfortunately, some marriages do not make it through the complete process of in-vitro fertilization and couples are left figuring out what to do with the pre-embryos. In this situation, you may find that you and your spouse disagree on what to do with the pre-embryos.

Here’s what you should know about how Connecticut courts deal with stored pre-embryos during a divorce.

Intimate partner contracts

When people make contracts with someone other than an intimate partner, there is a certain amount of objectivity that comes with the contract. When spouses make contracts with each other, it can be difficult for them to consider what could happen if the agreement does not go as planned.

When a contract between two intimate parties is in dispute, courts look at them with special scrutiny. Mainly, courts look for abuse of trust or unforeseen circumstances that could render the agreement unenforceable.

Three approaches

When courts look at divorce and this type of situation, they typically take one of the following three approaches:

  • In this approach, courts will look at the agreement and determine whether there were any unforeseen circumstances or manipulation issues when the couple entered into the agreement. If there are no issues that would make the contract unenforceable, courts will tend to follow the terms of the agreement regarding what to do with pre-embryos.
  • When courts use the balancing approach, they look at each spouse’s (or progenitor’s) interest to determine how to proceed. Typically, courts will evaluate intended use, reasons for pursuing in-vitro, bad faith, emotional consequences and each spouse’s ability to reproduce through other means. After examining these factors, the court will decide what to do with pre-embryos.
  • Contemporaneous mutual consent. The contemporaneous mutual consent approach means that spouses must both agree to dispose of pre-embryos. If they do not agree, the pre-embryos must remain in storage indefinitely or until the spouses agree, whichever comes first.

The method courts will use depends both on the jurisdiction and the facts of the case.

A recent case

In 2019, the Connecticut Supreme Court looked at a case regarding a divorcing couple and their pre-embryos. When the two lower courts looked at the case, they used the contractual approach. As the Connecticut Supreme Court looked at the case, they agreed that the contractual approach fit with both Connecticut public policy and the case’s facts.

The justices looked at how this case would proceed if they followed one of the other approaches. Although the contemporaneous mutual consent approach allows both parties to change their mind after the contract, but with the perspective of new circumstances, the Court agreed that this approach only considers the disposition of the pre-embryos and does not allow for a prior agreement that included allowing one or both spouses to keep the pre-embryos. Similarly, the balancing approach may favor one party over the other.

The justices all agreed that people should fulfill their contractual obligations when possible, even with intimate partners. In this case, the partners agreed ahead of time on the disposition of the pre-embryos in the event of a divorce.

Considerations for similar situations

Part of the Court’s reasoning in Bilbao v. Goodwin was that the couple had made an agreement that considered what to do in this situation. The fact that their feelings changed once the undesirable situation became a reality should not change the deal they made.

When you are in the process of considering in-vitro fertilization, you likely are not considering divorce as a likely outcome. However, it is essential to consider how you will feel about the obligations in an agreement such as this one if your marriage ends in divorce.