What happens to a couple’s frozen embryos in a divorce?

As technology advances, couples are increasingly turning to alternative methods of procreation. Some couples pursue the path of embryo cryopreservation—a process by which an egg is fertilized through in vitro fertilization (IVF) and then frozen. The embryo can then be brought to term whenever the couple decides they’re ready to have a child.

But what happens when a couple decides to divorce before the embryos are used? How do laws surrounding property division apply in such a case?

One landmark case addressing this issue—J.B. v M.B.—made its way to the New Jersey Supreme Court. In the case, the couple in question had eight cryopreserved embryos at the time of their divorce. The wife wanted the embryos destroyed, while the husband wanted them donated to infertile couples.

At the time of freezing the embryos, the couple had signed a contract with the IVF clinic, which stated that in the event of a divorce, the clinic would take ownership of the embryos unless otherwise decided by a court. Therefore, the court was left with a difficult decision: between one spouse’s right to procreate and another spouse’s right not to procreate, which prevails?

The husband in this case was not infertile. This factored into the court’s decision, because disposing of the frozen embryos did not infringe on his right to procreate through other means.

The court ordered the embryos to be destroyed.

However, had the husband not been infertile, it might have changed the court’s opinion on the matter. In a similar case this year, an Arizona court ruled that the frozen embryos should be given to the partner who still wanted children—and the other partner should be relinquished of any responsibility to care for or support children born from such embryos.

How to handle frozen embryos in a divorce is not a black-and-white matter—and court decisions on the issue are not always consistent. If faced with such a situation, it’s important to have an experienced family law attorney who can effectively advocate on your behalf.