Management of Cryopreserved Embryos Following Divorce
Direct Answer
Keep the embryos in storage and await legal settlement between the divorced parties (Option B). The dispositional authority over cryopreserved embryos belongs to both individuals who created them, and any use requires mutual consent as established at the time of cryopreservation 1.
Legal and Ethical Framework
Dispositional Authority Requirements
Both parties retain equal dispositional authority over the cryopreserved embryos, and consent forms should have made this authority explicit from the beginning of the cryopreservation process 1.
Clear dispositional agreements must be established at the outset of cryopreservation that specify what happens in cases of disagreement, separation, or divorce 1.
The couple should have signed consent forms specifying duration of storage, annual storage fees and payment responsibility, what happens if storage fees are not paid, and disposition instructions 1.
Why Each Option Is Inappropriate
Option A (Permit husband to implant in new wife): This violates the wife's dispositional authority over embryos she helped create, as both individuals who created the embryos retain dispositional rights 1.
Option C (Discard embryos due to illegal marital status): This is factually incorrect—divorce does not automatically mandate embryo destruction, and major medical societies explicitly endorse embryo cryopreservation as ethical practice 1.
Option D (Allow wife to use after ex-husband's consent): While this recognizes the need for mutual consent, it incorrectly assumes the wife has primary authority. Both parties have equal dispositional rights 1.
Practical Management Steps
Immediate Actions
Maintain current storage conditions with the AHU operating continuously to ensure optimal cryopreservation environment 2.
Document the divorce status in the medical record and flag the account to prevent unilateral action by either party 1.
Contact both parties to inform them that embryo disposition requires mutual agreement and legal resolution 1.
Legal Settlement Process
Advise both parties to seek legal counsel to resolve dispositional rights through divorce proceedings or separate legal agreement 1.
Continue storage during legal proceedings with both parties responsible for storage fees as originally agreed 1.
Require written consent from both parties before any disposition decision (transfer, donation, or discard) can be implemented 1.
Common Pitfalls to Avoid
Failing to establish clear dispositional agreements upfront leads to ethical and legal complications when couples separate or divorce 1.
Assuming one party has primary authority over embryos violates the equal dispositional rights of both individuals who created the genetic material 1.
Not documenting discussions about storage and disposition in the medical record can lead to disputes and unclear authority over the biological material 1.
Allowing unilateral action by either party without mutual consent violates established ethical principles of reproductive autonomy 1.
Long-Term Considerations
If the couple cannot reach agreement, the embryos should remain in storage until legal resolution, with both parties continuing to pay storage fees as originally agreed 1.
The fertility center should provide annual reminders to both parties about their stored material and the need for legal resolution 1.
If storage fees are not paid by either party, the disposition should follow the original consent agreement terms, which typically specify a timeframe before ethical discard 1.