Embryo Disposition Agreements

When a couple freezes their embryos they are looking brightly toward the future. They fill out dozens of forms at the fertility clinic and
hope that one day these embryos can be used to start a family. What is often not considered is what happens if the couple separates or divorces, one of them dies, or one party changes his or her mind.

The frozen embryos may be the ONLY chance for one or both of the individuals to have a child that is genetically related to them. And the person who wants to use the embryos at a later date may not be allowed to do so.

So what happens if there is a dispute about frozen embryos?

The law in Ontario is far from settled. Some cases in the United States strongly support a right not to procreate, while others recognize
the importance of upholding prior written agreements. Various facts, such as whether a sperm/egg donor was used, or whether the party wishes to use or donate the embryo, can impact the decisions as well.

Embryo disposition agreements (coupled with independent legal advice for each party) are a tool to help increase the possibility that the parties’ wishes will be upheld – even if one party changes his or her mind. While it may seem unusual to enter into a contract with one’s spouse or romantic partner, it is a risk management tool to protect future interests. If your frozen embryos are your only chance to have a biological child, you likely want to do everything in your power to ensure your right to use the embryos is not thwarted.

People preparing to freeze embryos should have thoughtful discussions with their spouses about the remaining frozen embryos, and should pay serious attention to any consent forms or agreement they sign at the clinic.

Fertility clinics should ensure that their consent forms and processes meet the standard for proper informed consent. They may even
want to encourage their clients to obtain legal advice to ensure patients, partners and known donors truly appreciate the implications of the forms and how they could impact a person’s desire – or not – to become a biological parent in the future.