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May 01, 2023 ART Law & Practice

Premarital Agreements and ART: Can You Contract for the Disposition of Embryos?

Katherine L. Provost

In November 2022, it seemed as if every media outlet in America broadcast the story of twins Timothy and Lydia Ridgeway, who were born 30 years after they were frozen as embryos in 1992. They are believed to hold the record for being the longest-frozen embryos known to result in a live birth. Their parents, Rachel and Philip Ridgeway, residents of Oregon, received the embryos through a donation made by an anonymous married couple to the National Embryo Donation Center in Knoxville, Tennessee, a center whose website claims it was created with the mission to protect the lives and dignity of human embryos by promoting, facilitating, and educating about embryo donation. The Ridgeway twins’ birth story is, by all accounts, a happy one. But would that same opportunity for happiness have existed if the anonymous couple who created the embryos had made a decision to divorce? In a divorce setting, would the existence of a premarital agreement executed by the donating couple have mattered?

Couples regularly engage in any number of discussions leading up to marriage. Often these discussions include tough conversations regarding everyone’s existing assets and finances and how the couple will navigate their post-marital world financially. It is equally likely that couples will have discussions about whether to have children, how many, and how they see their family being created. For those couples who choose a premarital agreement after these discussions, the hope is that by signing a legal agreement, they will have certainty about the future, and they will be able to avoid disputes, should the marital relationship not turn out as planned. At least one court has found that prenuptial agreements actually promote marital stability by permitting both spouses to lay out their expectations and to protect their individually-held assets. See, e.g., In re Marriage of Pendleton, 72 Cal.Rptr.2d 840,62 Cal.App.4th 751 (1998).

With more and more couples choosing to delay marriage until later in life and with a rise in entering into second, or even third, marriages, premarital agreements are becoming increasingly common. Couple this with the ever-increasing number of couples turning to in-vitro fertilization (IVF) to create their family, and the question arises, can engaged couples include provisions regarding the disposition of embryos in their premarital agreement?

Premarital Agreements are permitted in every US state, but the specific terms which govern the creation and enforcement of a premarital agreement can vary greatly from state to state. The Uniform Premarital and Marital Agreements Act (UPMAA) and its predecessor the Uniform Premarital Agreement Act (UPAA) were drafted by the National Conference of Commissioners on Uniform State Laws to promote greater uniformity and predictability between state laws relating to premarital agreements in an increasing transient society. The goal was to ensure a premarital agreement that was validly entered into in one state would be honored by the courts of another state where a couple might get a divorce. As of the writing of this article, the UPMAA/UPAA has been adopted by 28 states and the District of Columbia. Even in the states that have not adopted the UPMAA/UPAA, premarital agreements are still legal with specific requirements. Under the UPMAA and UPAA each party to a premarital agreement must have received fair and reasonable disclosure and have adequate knowledge of the property of the other prior to the execution of the Agreement. This promotes transparency between parties.

The answer to the question of whether a couple may include provisions regarding the disposition of embryos in their premarital agreement is most likely controlled by the answer to another question currently being asked in IVF circles around the world in light of the United States Supreme Court holding in Dobbs v. Jackson Women’s Health Organization (No. 19-1392, 597 U.S. ___ (2022): What are embryos—persons or property?

Presently, embryos are considered property, albeit recognized by courts as being of a special nature and requiring special respect. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); McQueen v. Gadberry, 507 S.W.3d 127 (2016); Markiewicz v. Markiewicz, No. 355774, Mich. Ct. App. Mar. 24, 2022). Couples are free to contract in a premarital agreement regarding finances and property. However, it is not permissible in any state to contract in a premarital agreement regarding the custody or support of children on public policy grounds.

In 2022, several states introduced bills in their state legislatures that, if passed, would create law requiring embryos be considered the equivalent of a human being from the moment of conception, with their own constitutional rights and privileges. If passed, these “personhood bills” will significantly impact the infertility field and numerous other areas, contract law included. If couples cannot address children in a premarital agreement, most certainly a couple would be prohibited from contracting about another person’s constitutional rights, if an embryo were deemed to be a human being from the moment sperm joined egg.

The fertility process itself is deeply emotional for any couple going through it. When the possibility of a divorce arises, embryos that remain in storage, initially created from love and with the dream of a family, can become the source of heated disagreement. One spouse might be the only one genetically related to the embryo and feel very strongly about bringing or not bringing their biological child into the world, the other may be completely infertile by the time of the divorce, leaving him or her no other way to create a biological child than to use the embryo created during a happier time of life. Both spouses may have completely different reasons and feelings about the future of the embryos, with deep emotions and making the resolution of the situation particularly difficult.

If couples have the ability to discuss what to do with their embryos before a divorce, and make clear their intentions in a premarital agreement, this can make it easier for the two spouses to handle this potentially emotional issue with dignity at the time of the divorce. There is no one size fits all solution to this situation. However as with as with other property to be distributed in accordance with the terms of a prenuptial agreement, if a couple has clearly stated their desires for their embryos in a contract and have an ownership interest in the disposition of the embryos, that contract will very likely control or at least play an important role in any litigation between them.

Like with other property provisions contained in a premarital agreement, when conflicts arise, a court can ensure that there has been both procedural fairness and voluntariness in the terms of the contract and in the outcome dictated by the terms of the premarital agreement itself. In deciding whether to uphold provisions in a premarital agreement for the disposition of embryos a court will need to look at its state law and determine if the terms for disposition were substantively fair. Whether a court considers fairness at the time the agreement was created or at the time it is challenged is a question of state law.

It appears that no court has yet to squarely address whether provisions in a premarital agreement related to embryo disposition are valid. However, both the UPMAA and UPAA support this as being a possibility so long as the terms of the agreement do not violate public policy. Including provisions for embryo disposition in a premarital agreement is consistent with the aim of a premarital agreement to promote marital harmony and allow each individual in a marriage to lay out their expectations about the assets that exist and the disposition of such assets when confronted with divorce. As Courts in the United States are not united in their approach for resolving disputes involving frozen embryos, there is no clear answer here. However, in the majority of states which follow a contract analysis to resolve a dispute involving frozen embryos, the clear, stated intentions of the spouses for the disposition of their embryos in a premarital agreement is likely to either resolve the issue or, at the very least, be persuasive to a court in rendering its decision.

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Katherine L. Provost

Partner, Kainen Law Group, PLLC

Katherine L. Provost is a partner with the Las Vegas, Nevada, firm Kainen Law Group, PLLC. She is a Fellow of the American Academy of Matrimonial Lawyers, International Academy of Family Lawyers, an ART Fellow of the Academy of Adoption and Assisted Reproduction Attorneys, and a Nevada Board Certified Specialist in Family Law.