Many couples dream of growing their family by having children, but their relationship does not always work out. It’s hard enough to go through a divorce in Texas with a child in the picture. For those couples facing infertility issues, marital relationship issues may be amplified by the emotions of the situation. More couples are turning to ART (Assisted Reproductive Technology) treatments such as In Vitro Fertilization (IVF), Surrogacy, and Fertility Medication.
There are several legal complications that can occur when divorcing during the ART process. Speak with a family law attorney who understands both divorce in Texas and reproductive rights.
To begin the IVF process, IVF facilities require consent to cryogenically store your embryos. However, those agreements often only touch upon what will happen to frozen embryos in the event of a divorce or separation. The contractual terms in the IVF consent forms are not necessarily binding. These terms are often vague as to the specific circumstances that may arise.
After signing the consent form, the next step in the IVF process is to begin the treatment – starting with the egg retrieval. This can be a stressful time in a marriage while conversations about the future can challenge a marital relationship.
Assuming the IVF implantation is a success, marital relationship problems related to infertility may be alleviated. However, it is important to be prepared for all scenarios when going through any kind of fertility treatment.
If You Divorce During Fertility Treatment
More specifically, what happens if you decide to divorce during the IVF process? There are several things to consider.
If IVF process is incomplete: What happens to the frozen embryos?
This is a complex issue that requires the insights of a family law attorney who has experience with reproductive rights and divorce in Texas. Courts across the country vary in how they treat cases relating to frozen embryos.
Divorce is a state court issue, so these decisions are being heard by state courts across the country. Some focus on contractual rights, but most have been reluctant to force a party to become a parent. In most cases, this results in the legal outcome favoring the parent who is against procreation.
The Case of One Divorce in Texas and Their Frozen Embryos
In Texas, the case of first impression on frozen embryos was In the Matter of the Marriage of Roman v. Roman, 193 S.W.3d 40 (1st Dist. Texas February 9, 2006). Prior to the creation of the embryos, the married couple signed an Embryo Agreement stating that they would discard all embryos in the case of divorce.
Despite having a written agreement, the Texas trial court treated the frozen embryos as personal property. Those embryos were subject to allocation between the parties upon divorce (just like a bank account or furniture). The embryos were awarded to the Wife for her possession and use in her sole discretion as part of the “just and right” division of the community estate.
The husband appealed the decision. The Court of Appeals for the 1st District of Texas reversed the trial court’s opinion, finding that the Embryo Agreement was an enforceable agreement between the parties. This authorized the destruction of the embryos per the contract. If the contract resulted in the state forcing someone to gestate the embryo, then the decision may have been different. Since that wasn’t the fact in this case, they didn’t have to be decide that way.
Speak with a family law attorney who understands both divorce in Texas and reproductive rights in relation to fertility treatment.