What Happens to Frozen Embryos in a Divorce?

A recent case in New York reveals the emotional and legal challenges couples face when dealing with a divorcing couple battling over stored embryos. 47-year-old woman viewed those embryos as her last chance to become a mother. Her spouse believed his religion dictated that they should be donated or destroyed. The resulting turmoil led to the court finding in the woman’s favor, only to have an appeals court overturn that ruling. Unfortunately for the spouse, the woman had already had the embryos successfully implanted, and the pregnancy was 12 weeks along. The outcome is essentially final, it seems, and worked out to the woman’s benefit. But it certainly brings questions to mind for anyone here in Florida facing similar circumstances.

Florida Law: Who is Entitled to the Embryos in a Divorce?

IVF treatments offer many couples the opportunity to have children under a variety of circumstances. Embryos are not classified as children in Florida. Instead, they are considered marital property of a special character. In a divorce, coming to an agreement as to the future of frozen embryos that satisfies both parties can be emotionally and legally difficult to achieve.

If either of the donor-individuals involved changes their mind and chooses not to become a parent due to divorce or other reasons, the courts will not force the issue, as it would violate that person’s right not to be a parent. On the other hand, if there are signed agreements in place prior to a divorce–as required under Florida law–they are typically honored. That’s why it’s so important to have an explicit understanding in writing as to what should become of the embryos if a divorce were to occur or if one person no longer wishes to be a parent. Typically, IVF clinics give couples the opportunity to decide if frozen embryos should be destroyed, donated, or given to a specific individual in the event of a divorce.

When There is No Written Agreement

In the event a couple has no written agreement, the court has no choice but to attempt to come up with a solution that considers the interests of both parties. Generally speaking, courts tend to rule in favor of the spouse who does not want the embryos to be used, reasoning that it would be unconstitutional to force someone to be a parent. Other issues will be weighed, as well, including whether the person wishing to become a parent can do so using other means.

Joint Custody 

In some cases, the court will award joint custody of the embryos, which just means that the embryos cannot be used or destroyed unless both parties agree in writing.

Fighting for Best Outcomes for You

Divorce can be complicated, and this particular issue can throw a wrench in the process. At WiseLieberman our dedicated Boca Raton family attorneys are committed to achieving the best possible results for you. To discuss, schedule a confidential consultation in our Boca Raton office today.

Source:

nytimes.com/2026/05/24/us/ivf-embryos-custody.html?smid=nytcore-ios-share