What Happens to Frozen Embryos in a Divorce? IVF Considerations Under Alabama Law | Ryan & Rouse
Sep 22 2025 13:00
As more couples turn to in vitro fertilization (IVF) to build their families, courts across the country — including in Alabama — are facing a new kind of legal question in divorce cases:
Who gets to decide what happens to the embryos?
Whether you’re just starting IVF or already in the middle of a separation, it’s essential to understand how frozen embryos, stored eggs, or sperm are treated in divorce. At Ryan & Rouse, we help clients navigate these highly personal and emotionally sensitive disputes with care and clarity.
IVF and Divorce: What’s the Legal Issue?
When couples create and freeze embryos together, both parties typically sign informed consent agreements with the fertility clinic. These agreements address how the embryos can be used — and sometimes, what happens to them in the event of divorce or death.
But when divorce occurs, one spouse may want to use the embryos, while the other wants them destroyed or preserved without use. This creates a legal and ethical conflict between:
- A person’s right to procreate, and
- A person’s right not to be forced into parenthood
Courts must balance these competing rights carefully.
What Alabama Courts Have Said
As of now, Alabama appellate courts have not issued a definitive ruling on who owns frozen embryos during a divorce. However, trial courts may look to:
- The language in the fertility clinic agreement
- Intentions of the parties at the time of creation
- Whether the embryos are being treated as “property” or as “potential life”
- Decisions from other states, many of which favor not forcing parenthood on an unwilling party
In early 2024, the Alabama Supreme Court issued a controversial ruling in a wrongful death case involving frozen embryos, referring to them as “extrauterine children” for purposes of civil liability. However, that decision did not resolve divorce-specific questions, and courts are still likely to weigh contract law and constitutional rights when deciding who has control over embryos.
Key Considerations in IVF-Related Divorce Cases
If you’re separating and IVF is part of your family planning history, here are some issues to be aware of:
✅ Review the Consent Agreements
Fertility clinics often require both parties to sign forms indicating what happens in the event of separation or divorce. Courts may treat these as binding contracts — or may override them if they’re vague or unenforceable.
✅ Be Clear on Intent
Did you agree to use the embryos no matter what? Or only under certain conditions? Were the embryos created before or after marriage? Courts will examine your intent at the time the embryos were created.
✅ Know That "Property Division" May Not Apply
While Alabama divorce law requires equitable distribution of marital property, courts may decline to treat embryos as traditional property — especially if one party objects to their use.
✅ Prepare for Complex Custody and Support Questions
If one spouse is allowed to use embryos and a child is born, child support obligations may still arise — even if the other party opposed parenthood. This is one reason courts are cautious about allowing use of embryos without mutual consent.
What You Can Do Now
If you’re planning IVF or already have embryos stored:
- Consult an attorney before signing fertility contracts
- Include specific terms in prenuptial or postnuptial agreements
- If you’re divorcing, bring IVF and embryo concerns up early in the process
- Prepare for negotiation or court review if there is disagreement
At Ryan & Rouse, we work with reproductive medicine professionals and family law judges to help ensure your intentions — and your rights — are clearly represented.
