Minnesota couples who are divorcing and who have gone through in vitro fertilization might not have considered what they will do with any frozen embryos. Typically, people who go through the procedure sign a contract that briefly addresses this issue and gives them the choice to keep or donate the embryos or have them destroyed. However, the contract might not be legally binding, and individuals might change their minds about what they want to happen to the embryos during a divorce.
Litigation over embryos can take months or years. In the meantime, it is important to maintain payments so the embryos are not destroyed. Courts will balance the tendency to avoid making someone a parent against their will with the possibility that a person may be unable to have biological children if the embryos are destroyed.
Unfortunately, while there are many norms and laws in place dealing with child custody, this is not the case with embryos. Therefore, couples may want to discuss the possibility of divorce at the outset of IVF procedures.
Since this discussion often does not happen, this issue could make an otherwise straightforward divorce a long and protracted process if couples do not agree on what they want done with the embryos. Mediation might be able to help some couples work through their disagreement, and the advantage of mediation is that it is a more cooperative approach than litigation. Litigation takes an adversarial stance while mediation attempts to resolve a situation to everyone’s satisfaction. Mediation may also be helpful in a range of other issues that arise during a divorce including child custody, visitation and property division. However, if one person is not cooperating in good faith or there are issues such as substance abuse or domestic abuse, litigation may be necessary.