It's one of the questions couples starting IVF are least prepared to think hard about: what happens to the embryos you create together if the relationship ends, or if one of you dies. It's an uncomfortable conversation to have at the start of a hopeful process, but the paperwork you sign at your very first cycle is often the single most important document a court will look at if this scenario ever plays out.
The document that matters most: your consent agreement
Before your first retrieval, your clinic required you to sign a consent and disposition agreement specifying what should happen to any resulting embryos under various scenarios, divorce, death of one partner, non-payment of storage fees, or simply if you both decide you're done building your family. Courts across nearly every state that has addressed embryo disputes have looked first, and often primarily, to these agreements when a conflict arises.
How courts generally approach disputes
| Approach | How it works | Where it's used |
|---|---|---|
| Contract enforcement | Courts enforce the original signed consent agreement as a binding contract, similar to how they'd treat other legal agreements. | The dominant approach in most states, including California, which treats embryos primarily under contract law |
| Contemporaneous mutual consent | Courts require both parties to currently agree before any disposition proceeds, regardless of what an earlier agreement said. If they can't agree, embryos remain in storage. | A minority approach; notably applied by the Iowa Supreme Court |
| Balancing test | In the absence of a clear agreement, courts weigh each party's interests, including their intent at the time of creation, alternative paths to parenthood, and who bore the physical burden of the IVF process. | Applied when no enforceable agreement exists or its terms are disputed |
One consistent thread across nearly every jurisdiction: courts are very reluctant to force someone into biological parenthood against their will. In dispute after dispute, including the widely covered Sofia Vergara and Nick Loeb case, courts have generally sided with the partner who objects to using the embryos, when no clear mutual agreement exists.
California, New York, and Oregon generally treat embryos as property, governed by contract law and the disposition agreements clinics are required to have patients complete. Louisiana is a notable exception: it's currently the only state that specifically designates IVF-created embryos as legal persons, which changes the legal framework significantly. Several other states use vaguer language around "unborn children" that leaves real ambiguity. For the fuller legal landscape, see our state-by-state embryo personhood guide.
What happens if one partner dies
Death changes the legal picture in a different way than divorce. Most clinic consent forms explicitly address this scenario, typically asking each partner to specify in advance whether the surviving partner may use remaining embryos, whether they should be donated, or whether they should be discarded. Because this decision is made before either partner has any reason to think about it emotionally, it's worth revisiting these directives periodically, not just signing them once and forgetting them exist.
Practical steps to protect yourself, before any dispute arises
- Read your clinic's consent forms carefully, ideally before your first retrieval, and ask your clinic to walk through every disposition scenario explicitly rather than skimming to the signature line.
- Consider a separate embryo disposition agreement with your own attorney, in addition to the clinic's standard form, particularly if your state's law in this area is unsettled.
- Revisit your directives after major life changes: marriage, divorce, a new partner, or simply years passing since you last thought about it.
- Talk about it directly with your partner, uncomfortable as it is, before you're in the middle of a relationship crisis.
If you and a partner or ex-partner disagree about what happens to your embryos right now, this is a situation where a reproductive law attorney, not general information like this article, is what you need. Many family law attorneys now have specific experience with embryo disposition cases; a referral through a local family law bar association or a fertility-focused legal directory is a reasonable place to start.
Frequently asked questions
Can I be forced to become a parent if my ex wants to use our embryos?
Generally no. The strong pattern across most US court rulings is that no one can be forced into genetic parenthood against their will, even when an embryo was jointly created. Courts have consistently protected the right of a party who objects to use.
What if we never signed a disposition agreement?
This is where courts fall back on a balancing-of-interests approach, weighing each party's stated intent, whether either partner has other paths to biological parenthood, and other case-specific factors. Outcomes here are much less predictable than when a clear agreement exists, which is exactly why signing one at the start matters.
Can embryo disposition terms be included in a prenup?
Some couples do include embryo disposition provisions in prenuptial agreements or separate estate planning documents. It's an evolving area of law and courts haven't uniformly settled how these interact with clinic consent forms, so this is worth discussing with an attorney rather than assuming it's automatically binding.