Who Gets the Frozen Embryos in a Divorce?

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Who Gets the Frozen Embryos in a Divorce?

Who Gets the Frozen Embryos in a Divorce? by Deborah E. KaminetzkyAs if couples don’t have enough to think about when dividing assets and deciding on custody, the concept of making decisions about reproductive technology is becoming more common. Many people are waiting longer to get married and start families, and many people are beginning to take advantage of the newest reproductive technology available to them. Sometimes people realize even prior to marriage that they may need to proactively store their eggs and/or sperm. For instance, some people harvest eggs prior to having surgery or chemotherapy or radiation to prevent or cure cancer. The same goes for sperm. As it stands currently, the frozen embryos are not property to be divided and not live children for whom custody can be determined.

The law in New York is currently based on a New York Court of Appeals case from 1998, Kass versus Kass. In that case, the court looked at the “informed consent document” as a contract the parties signed with the clinic provider when they had their assisted reproductive technology. The document stated that in the event of a divorce, the parties agreed to donate their frozen embryos to research. The court discussed the fact that the contract was drafted by the clinic partially to protect its own interests however absent any other document that was found to be their agreement.

There is a bill currently in New York Senate Judiciary Committee (S5835), sponsored by New York State Senators Liz Krueger and Brad Hoylman, which would change the Domestic Relations Law and “enacts provisions relating to the execution of written forms, prior to assisted reproductive technology services, for consent and directives for the transfer, use, and disposition of cryopreserved embryos or gametes, and provisions relating to notice prior to the implementation of the terms of such advance directives.”

In plain English, people would have to have an agreement regarding what would happen to the fruits of their assisted reproductive technology in the case of a divorce prior to being able to receive this treatment.

Until such time as that law is enacted, what do we do? For one thing, couples who have not married or conceived a child, and have some idea that they may need this technology, should ask their attorney or mediator about a prenuptial agreement. For those already married, a post-nuptial agreement would be in order.

For those who did not plan in advance and find themselves in a divorce situation, make sure your attorney or mediator is aware that this is an issue. I plan to monitor the situation and will update my blog with any new information.

Deborah E. Kaminetzky


Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2019-05-14T21:14:39+00:00 April 5th, 2018|Divorce Law, Mediation|0 Comments

About the Author:

Deborah E. Kaminetzky
Deborah E. Kaminetzky is the founder of Kaminetzky Law & Mediation, P.C. located in Long Beach, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Chair of the General, Solo and Practice Management Committee and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012 and Leadership award honoree in 2019. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.

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