Deciding to start a family can be a wonderful time filled with hope and excitement. However, conceiving a child can often be difficult and pose many challenges for couples. Often couples turn to in vitro fertilization (IVF) for help. IVF is a medical procedure in which an egg is fertilized by sperm in a test tube or elsewhere outside the body. IVF can be an intense and costly procedure. The average cost of an IVF procedure is between $12,000 and $17,000. Under Georgia law, patients are not required to sign legal documents consenting to assistive reproductive technologies (ART), nor does the law govern issues relating to embryo disposition.  Most fertility clinics in Georgia require patients to sign documents, however, which are drafted by an attorney

During an IVF procedure, embryos are created and sometimes an excess amount is made.  Couple may discard them, donate them to research or to another couple, or freeze them for possible use in the future. The issue then arises when a couple is divorcing and must decide what to do with any excess embryos. The consent agreement from the IVF facility rarely covers what should happen to the embryos in this situation.

In fact, the consent agreement will not be enforceable in court. Frozen embryos are considered to be joint marital property until the embryo is implanted. Therefore, both parties must decide together what should happen. However, there is little protection available for the actual embryos and since this is a relatively new area, there is not much case law available to help guide the courts. Some states have enacted legislation surrounding frozen embryos, but Georgia has yet to do so.

So, what happens if one party changes his or her mind during the divorce concerning the embryos and no longer wishes to go through with the implantation? Maybe one spouse now wishes to donate or discard the embryos while the other still wants to attempt implantation in the hopes that a child will be born. A court generally will not compel one party to become a parent against his or her will, but there are some exceptions that can potentially be made, such as when this is the last chance for a person to become a biological parent.

If a couple does decide to continue with a pregnancy through IVF after initiating and maybe even completing a divorce, then both parents are entitled to parental time as well as parental responsibilities of the child just as if the pregnancy had occurred naturally instead of through IVF. In this situation, an attorney can assist in completing a parenting plan, deciding child custody, and deciding child support.

If you are contemplating divorce and have frozen embryos that were created by you and your spouse, please contact the attorneys at Vayman & Teitelbaum. We understand the emotional issues that are inevitably involved in these instances and can help you reach a solution that is best for you.