Embryo Disposition Following Divorce Before Transfer
The embryo should be frozen until the disagreement is resolved through legal proceedings or mutual agreement between both parties, as both genetic contributors retain dispositional authority that cannot be unilaterally overridden. 1
Legal and Ethical Framework
The American Academy of Pediatrics establishes that agreements between parties creating embryos should set forth terms of disposition at the outset of the process, including what to do in cases of disagreement, separation/divorce, or death. 1 When such agreements were not established beforehand, neither party can proceed without consent from both genetic contributors.
Why Each Option Is Inappropriate Without Mutual Consent
Option A (Transfer to new wife) is not permissible because:
- The ex-wife retains dispositional authority as a genetic contributor to the embryo 1
- Transferring to a third party without the ex-wife's explicit consent violates her reproductive autonomy 1
- Most IVF clinics look to individuals who contributed genetic material to make decisions about disposition 1
Option B (Disposal) is not permissible because:
- The husband alone cannot make this decision without the ex-wife's consent 1
- Both parties must provide current consent for any disposition decision, including destruction 1
Option C (Ex-wife keeps with husband's consent) is only permissible if the husband agrees because:
- This requires mutual consent from both genetic contributors 1
- Without the husband's agreement, the ex-wife cannot unilaterally proceed 1
Option D (Freeze until resolution) is the only appropriate action because:
- It preserves both parties' interests while legal or mutual resolution is pursued 1
- Cryopreservation maintains the status quo without violating either party's reproductive rights 1
Critical Pitfalls to Avoid
Never proceed with any disposition without documented consent from both parties - this includes transfer, donation, research use, or destruction 1
Do not assume spousal consent is automatically transferred or waived upon divorce - dispositional authority remains with both genetic contributors regardless of marital status 1
Ensure original IVF consent forms are reviewed - if they contained specific provisions for divorce or disagreement, those terms should guide the resolution 1
Resolution Pathway
The couple should be directed to:
- Legal counsel to resolve dispositional authority through court proceedings 1
- Mediation services to reach mutual agreement on embryo disposition 1
- Review of original consent documents signed at the time of embryo creation 1
The embryos must remain cryopreserved until either a court order or written mutual consent from both parties determines their final disposition. 1