Consider Embryo Clauses in Your Prenuptial Agreements

As fertility treatments such as in vitro fertilization (IVF) become increasingly common, embryo litigation is emerging as one of the most complex and emotionally charged areas of reproductive law. Legal disputes over embryos can involve ownership rights, cryopreservation, destruction, clinic mix-ups, or disagreements between partners following separation or divorce. These cases often force courts to navigate deeply personal questions: Who should receive the embryos? How should contracts be interpreted? What rights does each party hold?

Depending on the state, embryos may be treated as a unique form of property or classified more like children, meaning their future can hinge on contractual agreements or, in the absence of those, lengthy and costly litigation. This gray area highlights why many fertility law experts encourage couples to address embryo ownership and disposition before treatment begins.

How States Interpret Embryo Rights

State laws vary significantly, creating a patchwork of legal standards that can lead to very different outcomes depending on where you live.

In Alabama for example, frozen embryos created through IVF are considered children. As a result, the destruction of an embryo could lead to both civil and criminal penalties. This interpretation frames embryos as entities with legal protections similar to minors, which can deeply impact decisions following a separation or clinic dispute.

In contrast, New York classifies embryos as a “unique form of property” and not as persons. This approach aligns with Senate Bill S8682, which clarifies that embryos are not granted personhood under state law. This distinction allows couples to address embryo disposition through legal agreements and contracts rather than through custody-style litigation.

Why Legal Clarity Matters

Janene Oleaga, a fertility lawyer and reproductive rights advocate with extensive experience in surrogacy, egg donation, embryo disposition agreements, and assisted reproductive technology (ART) law, has worked closely with intended parents, surrogates, and donors navigating these exact issues.

“There has been a lot of litigation, especially in New York about people fighting over embryos in the context of a divorce, but also outside of divorce,” Oleaga explained. “So what happens to embryos that people are fighting over? Who wins? And what factors should be determinative in the outcome of who gets embryos?”

According to Oleaga, this often stems from the lack of clear agreements made before embryos are created. When disputes arise, courts may step in and sometimes with unpredictable results.

“Judges in New York don't want to make these choices. So New York now has a statute saying, please sign an embryo disposition agreement that determines who gets your embryos should you ever split up, whether it be through divorce or if you break up and you're not married and who's a parent of any resulting child,” she said.

Including Embryo Clauses in Prenup Agreements

One of the clearest ways to avoid future legal battles is to include embryo clauses in prenuptial agreements or similar contracts.

“I always encourage people to sign. If you're creating embryos, you need to sign this agreement. It's kind of like a prenup for embryos,” Oleaga said. “Everyone has legal counsel. Everyone signs a binding agreement and it should be enforced by a judge saying, look, you made these decisions before you were in this scenario. So we're going to follow the decisions that you made.”

These agreements can address critical issues early, including:

• Who retains control of the embryos in the event of divorce or death
  
  

• How unused embryos will be handled, such as donation, destruction, or future use
  
  

• Whether one partner can use the embryos independently
  
  

• How storage and clinic costs will be covered
  
  

• What steps to take if state laws change
  
  

Without a clear agreement, these deeply personal decisions can end up in the hands of judges who must rely on state statutes, sometimes leading to outcomes that don’t reflect either party’s original wishes.

“If you live in a state like Arizona where there's a statute that says the person more likely to bring the embryos to life gets the embryos. Alabama has its own interesting spin on the fact that embryos are children, right? So depending on where you live, it will dictate the outcome,” Oleaga explained.

What to Include in Embryo Clauses

While every agreement should be customized to individual circumstances and reviewed by legal counsel, common embryo-related clauses may include:

• Ownership and usage rights: Who controls the embryos in the event of a breakup or death.
  
  

• Disposition of unused embryos: Whether embryos will be donated, destroyed, or retained.
  
  

• Parental rights and responsibilities: Who may use the embryos to create a child and under what conditions.
  
  

• Financial agreements: How storage and clinic costs will be managed.
  
  

• Dispute resolution: Mediation or arbitration terms to avoid drawn-out court battles.
  
  

• Contingency planning: Provisions for changing medical circumstances or shifts in state law.
  

Quotes taken from MissPoppins-The Art of Parenting

Episode 45: Fertility Access, Policy, and Real Talk w/ Janene Oleaga