Resolving Disputes Between Divorcing New York Spouses Regarding the Outcome of Unused Frozen Embryos

marriage dissolution

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Today, the definition of “family” is wider-ranging than it’s ever been before. Along with that truth is the connected fact that the issues faced by the courts and couples going through divorce and other family law issues span a broader spectrum than in the past. However, even when facing a very modern set of facts, it is possible that extremely well-worn principles of law may decide the outcome. Even a dispute about frozen embryos may come down to long-decided principles of contract law. To understand the extent of your rights and your options if you encounter a divorce dispute, be sure to contact a knowledgeable New York City divorce attorney about your case.

If you and your spouse decide to utilize assisted reproduction technology, it is extremely important that you understand every part of any agreement you sign regarding the genetic material that may come from that process because, if a dispute should arise between you and your spouse, the courts will look first at what you agreed to do in the signed written document. A case very recently decided by the Appellate Division offers a real-life example of this concept. The case (whose outcome even made the pages of the New York Post) involved Yoram and Bat-El, who married in Israel in late 2011. The husband was in his 50s; the wife was in her 40s. Desiring to have children, they pursued in vitro fertilization in Israel but were unsuccessful.

A few months later, the couple moved to New York and retained the services of a fertility clinic in Manhattan, seeking to become pregnant through the implantation of cryopreserved embryos. The agreement the couple signed with the Manhattan clinic said that both spouses consented to the use of the frozen embryos, and each spouse was free to revoke that consent in the future. After a few more months and several more unsuccessful attempts at IVF, the husband filed for divorce.

The couple then became locked in a legal battle over the one remaining frozen embryo. While that dispute was proceeding in court, the husband filed a document with the clinic, stating that he revoked his consent to the use of his genetic material. That, according to the Appellate Division court, was enough to decide the outcome. In 1998, New York’s highest court said that “agreements between donors participating in IVF should be enforced pursuant to general rules of contract interpretation.” In other words, despite the very special and precious subject matter, the law requires deciding this type of disagreements just as it would any other contract dispute.

In Yoram and Bat-El’s case, the contractual agreement was clear. Either spouse could revoke consent at any time, and, once either spouse made that revocation, that terminated the other spouse’s right to use the frozen embryo for any reason. Even though this last remaining embryo was Bat-El’s last chance to become a biological parent, that fact was not relevant to determining who should succeed in this dispute.

One the most important “take aways” from this case is the profound importance of fully understanding exactly what you are signing before you sign any document that can affect your legal rights. Whether it is a prenuptial agreement, a marital settlement agreement, a consent agreement for in vitro fertilization, or something else, it is always essential to have full knowledge before you sign. Often, that means having experienced legal representation to protect your interests. With more than 30 years of experience assisting New York residents with family law issues, New York divorce attorney Ingrid Gherman has both the knowledge and the skill to provide you with the representation you need.

To schedule your free consultation, call us now at 212-941-0767 or contact us online.

More blog posts:

New York Appeals Court Rules that Same-Sex Partner has “Presumption” of Parental Rights, New York Divorce Attorney Blog, October 30 2017

Signatures on New York Marital Agreements Must Meet Strict Statutory Criteria to Be Enforceable, New York Divorce Attorney Blog, November 28, 2016

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