What are some legal issues for married couples undergoing fertility procedures?

So, the major legal issues for married couples undergoing IVF is not really so much on the front end but potential on the back end. Not all couples survive the process, don’t survive it as a couple, not necessarily that they pass away. It’s a very stressful environment for couples who may want to have children but they can’t. Couples do break up and oftentimes, the question is what happens to those embryos that are stored once the couple breaks up. There are various schools of thought on it. Generally speaking, America has taken a two headed approach.

First, they say they’ll honor whatever contract the couple enters into prior to freezing those embryos. So if the couple agrees that should there be a death in the family or should they break up, that the embryos will be destroyed or that the woman will keep possession of the embryos…whatever eventuality they choose, whatever they choose to put on the contract. Usually, the courts will honor it. Not always, but that is the general approach.

The second tactic that the courts usually take is that absent such an agreement, at least in the United States, those courts that have considered the issue have said that the right not to become a parent generally outweighs the right to become a parent. So, if one of the former partners no longer wishes to become a father or a mother, then the partner who does wish to, can’t, at least not through those frozen embryos. Of course, the courts who have addressed it have had caveats in their decision, they said, except maybe if that is your only chance to get pregnant, if you have no other chance. That particular situation hasn’t come up and so the point is it really is best to enter into those agreements up front because at least that shows to courts in the future that that is what both of you had agreed upon, those were your intentions, how you plan to live your life.

And, as sort of a word of caution, although Americans have really old rules about the right not to become a parent, the Israeli Supreme Court faced with the same decision has actually ruled the other way. They have felt that the right to become a parent is really of much greater value than someone’s right not to become a parent because that is bringing a new life into the world, that is allowing the person who’s going to be pregnant to fulfill their dreams. So they have taken a different tactic and there really is no guarantee that American courts and some states won’t follow that logic which is somewhat compelling in its own right.