Recently, tech giants Apple and Facebook announced they would pay key female employees an egg freezing incentive, so they could focus on their careers and delay childbearing. “While this generous employee perk sounds enticing, women should carefully weigh the benefits, risks and implications of delaying pregnancy both from a legal and health perspective,” advises Connatser Family Law Attorney Aubrey Connatser.
Frozen Eggs and Embryos Don’t Guarantee a Successful Pregnancy
In her recent New York Times op-ed, Sara Elizabeth Richards, author of “Motherhood Rescheduled: The New Frontier of Egg Freezing and the Women Who Tried It,” warns that egg freezing won’t be successful for every woman. In fact, “success varies according to the expertise of doctors and the quality of eggs, but even the best fertility centers report that a woman’s chance of pregnancy per embryo transferred to the uterus is between 30 and 50 percent,” according to Richards.
Women should talk with their doctors regarding the pregnancy success rates they can expect, especially as they get older. They should also ask their doctor about potential health risks they may face and how their ability to successfully carry a baby changes after the age of 40.
Plus, you can’t predict how healthy you will be a year from now, much less 10 years from now. If you’re a young, career-minded woman, give serious thought to the future health roadblocks you might face, and how you will cope if you are unable to have a baby later in life.
With Frozen Eggs Come Frozen Embryos and Legal Considerations
From a legal and ethical standpoint, women should consider what would happen to any left over frozen embryos they create with a husband or partner. “In the case of divorce or separation in the state of Texas, frozen eggs are considered genetic material. Technically, the eggs are not people and are presumably considered as separate property in a court of law,” counsels Aubrey.
“Since only the woman’s genetic material is involved, she typically maintains ownership of the eggs. However, frozen embryos are an entirely different matter. Fortunately, reputable fertility specialists require that couples (and those entering into surrogacy agreements) sign a contract prior to the egg harvesting and fertilization procedures, which Texas courts have held to be valid and enforceable. A married couple should agree in writing as to the fate of any remaining embryos, should the couple divorce,” Aubrey says. Case law in other states suggests that, absent an agreement, it would be the Court’s responsibility to weigh the interests of both parties and ultimately decide who is awarded the embryos.
Pre-planning Is Critical When Embryos Are Involved
“The key is to resolve embryo ownership and parental rights and obligations on the front end. What happens to extra embryos (even if you stay married)? Couples may end up with extra embryos because in vitro fertilization (IVF) often takes multiple attempts, thus multiple embryos. I recommend pre-planning before you harvest and fertilize eggs, so everyone is clear regarding what will happen with the remaining embryos, should the fertility treatments fail or if the marriage ends in divorce,” Aubrey advises.
All of these considerations should be included in the fertility contract that couples sign with their fertility specialist and may include:
- Destroy embryos should couple divorce.
- Transfer ownership of the embryos to either the husband or wife.
- Clarify legal, custodial and financial obligations for both parties pertaining to the embryos and any children who result post-divorce.
- Put embryos up for “adoption” by other couples.
When Destroying Embryos Isn’t an Option, “Adoption” Is
According to Aubrey, “Allowing ‘adoption’ of embryos is an option many couples consider, especially if they don’t believe in destroying embryos for personal or religious reasons. Couples who are unable to harvest their own eggs or conceive their own baby due to genetic disease or other health issues may be likely candidates to ‘adopt’ embryos.”
“While such agreements are often referred to as “embryo adoptions,” technically, Texas law classifies such agreements as a transfer of property. Embryo transfer contracts can terminate the parental rights and any future financial obligations of the couple that created the embryo,” Aubrey says.
“These contracts also clarify that the woman who gives birth to the child from an adopted embryo is the legal parent once the baby is born. When a surrogate is involved, a surrogacy agreement terminates the gestational carrier’s parental rights immediately following birth of the child,” advises Aubrey.
To learn more about surrogacy agreements, read this earlier post: 7 Critical Facts You Should Know Before Considering Surrogacy in Texas
Don’t Take Egg and Embryo Freezing Lightly
If you’re considering freezing your eggs, so you can start a family later in life, do your research first. Speak with your health practitioner regarding potential health and pregnancy risks, and contact a Texas family law attorney who specializes in fertility agreements. With expert advice in hand, you will be better equipped to make decisions that align with your long-term childbearing goals.