Note: The following article is informational only and should not be construed as legal advice. If you would like legal advice, you are welcome to contact me for a consultation or a referral to a lawyer in your area.

After months – or maybe years – of trying to get pregnant, you find yourself in a doctor’s office considering IVF. The stress, the cost, the nerves – it all adds up, when all you’ve really wanted was a baby. And then, a medical staff person plunks down a pile of papers with small print. “Standard informed consent paperwork,” they tell you, and maybe they offer an opportunity for you to take it home and review it. Considering the urgency and longing you feel to get the process moving as quickly as possible, the impulse to check random boxes, sign the documents and shove them back under the nose of the person who handed them to you is only natural.

But, as your friendly neighborhood family formation lawyer, I’m here to beg you to take your time when filling out medical consent forms for IVF and keep your eyes open for a few key considerations. When people really want to get pregnant, it’s often hard to think about what may happen in the future, and no one likes to think about the possibility of death or divorce, but it’s my job to make sure that my clients work through these and other tough questions. Whether or not you decide to have a lawyer review the consent forms for you, DO NOT sign them until you feel comfortable that you understand what they say and what you are agreeing to.

Medical consent forms cover a lot of ground, including risk, medical procedures, and liability, but in this article, I am going to focus on the disposition of embryos for couples and individuals who have contributed their own gametes (sperm or egg) with the intention of becoming a parent. If you are using donor sperm or egg – whether from someone you know or an anonymous donor – you (hopefully) are already working with a lawyer for the donor agreement. Sometimes those agreements can conflict with what you sign in the doctor’s office or supersede the clinic forms entirely. Be sure to check in with your lawyer if you’re not sure how the forms will impact each other. But for couples who are using both their own sperm and egg, sometimes, a lawyer doesn’t end up in the picture…unless something goes wrong.
Here are a few pointers for couples to consider when signing clinic agreements related to embryos…to hopefully keep the lawyers away in the future:

As much as no one likes to think about it, splitting up is a reality for many, many couples. In some divorce proceedings, one spouse has wanted to keep and use remaining frozen embryos, while the other has wanted them thawed or donated to science or to another couple. Generally speaking, courts will not enforce a contract that “forces” one person to become a parent against their will. However, there have been special considerations and exceptions made when the person seeking to become a parent has no other option to have genetically related children in the future, for example, if they underwent chemo and no longer can produce any viable eggs. The final decision depends on state law, any contracts that have been signed, and the judge ruling on the case.

Have you talked to your spouse or significant other about what would happen to any remaining frozen embryos if you split up…
…before getting pregnant?
…during the pregnancy?
…after having children?


How you feel now may change if your relationship dissolves. Is the moment when your relationship is breaking apart the time in which you want to be bound by a contract you signed when you were trusting your partner to raise a child with you? While courts may not find the contract enforceable, do you really want to have to fight in court over embryos when you’re already going through a divorce? Consider whether the contract has a mediation clause or another type of “escape valve.” Almost all contracts can be revoked and/or updated with the mutual written consent of the parties involved, so it’s often not too late to change your mind jointly.


Another topic that people don’t like to think about is death. Generally, surviving spouses will take responsibility for the remaining embryos and their future disposition, but what that means is a very personal decision. Additionally, there have been cases in which both spouses have died and the parents of one of the spouses sought to hire a surrogate to carry and give birth to their grandchildren whom they would raise. Clearly, this is a complicated scenario that may or may not be reflective of the choices you would make for your own family.


How would you feel about your spouse or significant other using the embryos that you created together in the event of your death? Would you want your spouse to go ahead and continue to try to have your children after you pass away or would you want the embryos disposed of in some other way? How about if your spouse was the one to pass away? If there are children born after your death, do you want them to inherit from your estate along with any children you had before your death?


What if (heaven forbid) both of you pass away in a car accident or some other disaster? Even if you clearly don’t want the embryos used in the event of both of your deaths, what do you want done with them?
If you have wills, trusts, or other testamentary documents, consider updating them with explicit instructions on what to do with any of your frozen gametes. No one likes to have to make those decisions without knowing what you would have wanted. Consider it a gift to your future heirs. Additionally, some courts have ruled that without explicit written instructions from the person who passed away, no one has a right to use the genetic material at all, so make sure you’ve put your desires in clear writings.


Even if everything goes according to plan and you and your partner have as many babies as you’d hoped, and everyone is happy and healthy, many people still end up with leftover frozen embryos.


Have you discussed what you would want done with those?


Sometimes clinics charge fees for continuing to store embryos. At what point would you rather stop paying those fees and find a way to do something with them?


While some people are fine with thawing the embryos or donating them to science, for others, the choice of what to do with them is influenced by beliefs in terms of when human life begins. For some, those beliefs may shift throughout the family formation journey. Donating embryos to other couples seeking to have children may be a preferred option for some. And for others, a “compassionate transfer” is the best choice, in which the embryos are transferred at a time in the woman’s cycle and in a way in which a pregnancy would be highly unlikely.


Make sure that you have a serious conversation with your significant other about how you want your embryos treated in these different scenarios. And make certain that those choices are adequately and accurately reflected on the medical consent forms. If the forms don’t reflect what you both want, don’t be shy! Write what it is that you do want on the forms. At the end of the day, the most important thing is to show what your intent is, and if you sign the forms without reading them – or without thinking about these contingencies – it will be that much harder to figure out what to do if one of these situations comes up.

Two additional considerations may be important as you make these decisions:

1. Medical consent forms are often electronic now instead of on paper. Editing or modifying them to fit your needs may be more challenging than it was when you could literally take a pen to them and cross things out. Still, don’t let that prevent you from making the changes you need.
2. Despite best efforts, the medical consent forms are still just that – medical consent. And there is an argument to be made that medical consent can be withdrawn for any procedure at any time. If you want something that will be more likely to be upheld in court if there is a dispute, you may want to consider hiring a lawyer to write a direct contract between the two of you, rather than just signing off on the clinic forms.

With all of the medical research you do on this journey, don’t forget to protect yourself legally as well. As the saying goes – an ounce of prevention is worth a pound of cure! I wish you the best and hope that by getting you to think about these issues today, I’ve helped ensure that you won’t ever need to deal with them in the future.