What Happens to Frozen Embryos in the Divorce?

In Oklahoma, the fate of frozen embryos in a divorce is generally governed by the intentions and agreements of the parties involved. The state does not have specific legislation addressing this issue, so courts rely on contractual agreements or the intent of the parties at the time the embryos were created.

If the divorcing spouses have a written agreement regarding the disposition of the frozen embryos, the court will typically honor that agreement, provided it does not violate any laws or public policy. This agreement could specify options such as donation, destruction, or transfer to one party. It’s likely that any IVF process in Oklahoma includes a written agreement.

In the absence of a clear agreement, Oklahoma courts may consider various factors to determine the disposition of the embryos. These factors can include the expressed preferences of the parties at the time the embryos were created, the best interests of any existing children, the parties’ reasons for seeking different outcomes, and any applicable contractual provisions or guidelines provided by the fertility clinic where the embryos are stored.

The fate of frozen embryos in a divorce can vary depending on the specific circumstances of the case. In general, the resolution of this issue involves complex legal and ethical considerations.

There are typically three possible outcomes for frozen embryos in a divorce:

1. Agreement between the parties: If both spouses can reach a mutual agreement on the disposition of the frozen embryos, such as deciding to donate them, destroy them, or transfer them to one party, the court will usually honor that agreement, provided it does not violate any laws or public policy.
2. Court order: If the divorcing spouses cannot agree on the fate of the frozen embryos, they may need to seek a court order to determine their disposition. In such cases, the court will consider various factors, including the intentions of the parties at the time the embryos were created, any existing agreements or contracts, the best interests of any existing children, and the constitutional rights and interests of both parties.
3. Legislative framework: In Oklahoma, the termination of frozen embryos is not explicitly addressed by specific legislation, however, the 2022 passage of H.B. 4327 totally banned all abortions after detection of a fetal heartbeat. Although the Oklahoma Attorney General stated this law did not impact IVF processes, the law did create concern for providers as to what could be done with frozen embryos created during the course of IVF medical services. However, the 2023 case of Oklahoma Call for Reproductive Justice v. State of Oklahoma, found H.B. 4327 unconstitutional and thus unenforceable. This will likely result in new abortion legislation in the coming legislative session in Oklahoma.

Most legal scholars suggest that so long as future abortion bans refer specifically to ending a pregnancy, and do not prohibit the termination of a fertilized egg, there should be no prohibition against the termination of the egg should that be the decision of the responsible parties. We will be watching this issue closely and provide additional analysis as information becomes available, but at this time we’re confident no law prohibits the destruction of frozen embryos should that be the desire of the parties.

The disposition of frozen embryos in cases where the parties cannot reach an agreement or when there is a dispute is generally determined by the courts based on various factors, including the intent of the parties at the time of their creation. When determining the fate of frozen embryos, Oklahoma courts typically consider factors such as the preferences of the parties, the best interests of any existing children, and any applicable contractual provisions or guidelines provided by the fertility clinic where the embryos are stored.

Laws and regulations regarding frozen embryos can vary significantly among states, which could become relevant should the parties be divorcing in Oklahoma but storing embryos in another state. Therefore, it’s crucial to consult with a family law attorney who is knowledgeable about the specific jurisdiction and its relevant laws to understand the options and potential outcomes in a particular case.

It’s important to note that court decisions regarding the fate of frozen embryos can be highly case-specific and subject to judicial discretion. It is recommended to consult with a family law attorney in Oklahoma who is familiar with the local laws and precedents to understand the specific considerations that may apply to your situation. If The Smith Firm attorneys can assist you with this very personal issue, contact us today to schedule a consultation.