It’s not the most typically litigated issue in our State, yet the Supreme Court of New Jersey has addressed who should get frozen embryos in a divorce. The Court looked at whether the wife had a right to keep her pre-embryos that had been stored at an in vitro fertilization clinic, and whether the clinics’ disposition agreement that the couple signed 6-years prior thereto should determine the outcome in their divorce.

In J.B. v. M.B., 170 N.J. 9 (2001), a divorcing couple disagreed about whether the pre-embryos, which remained in storage after their failed in vitro fertilization attempts, should be destroyed. The couple signed a consent form when they started treatment at the Cooper Center in 1995 that made the following disclaimers:

• The control and disposition of the embryos belongs to the Patient and her Partner.

• B. (patient) and M.B. (partner), agree that all control, direction, and ownership of our tissues will be relinquished to the IVG Program under the following circumstances: A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues.”

The Court found the consent form granted control over the pre-embryos to the Cooper Center, unless the parties change their minds or a court ordered otherwise during divorce proceedings. However, unlike similar consent forms in other IVG cases, the language of this one was written conditionally. It found that no formal agreement memorializing a joint intent regarding the pre-embryos existed.

Ultimately, the case turned on whether the Wife had a right not to procreate. The Court found it very persuasive that Husband was not denied the right to procreate by the trial court’s decision, since he already had one child and could father others. The Wife’s right not to procreate, however, would be completely infringed should she be forced to allow others to use her pre-embryos against her will.

In sum, the NJ Supreme Court found the lower court’s conclusion persuasive that “a contract to procreate is contrary to New Jersey public policy and unenforceable.” While recognizing the importance of enforcing pre-embryo disposition agreements, the High Court found it preferable to enforce the parties’ own agreements, entered when in vitro began, “subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos.”

The Court preserved each party’s right to object to pre-embryo disposition at a later date, in writing.  If there is a disagreement, then the trial court must evaluate both parties’ interests.

Ultimately, the Court decided the Wife had a fundamental right to decide whether she wanted not to procreate, and ordered the pre-embryos destroyed at her request.

Divorce can be difficult enough without such complicated disputes. In our experience, unique issues arise in many divorces. Your divorce will be easier if you have an experienced family lawyer in your corner. For compassionate counsel and tough advocacy, call our family law attorneys at Hanan M. Isaacs, P.C., in Central New Jersey. Call 609-683-7400 or contact us to schedule a near-term, reduced fee, initial consultation. You will be glad you did.