As 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, Esq.
Kaminetzky Law & Mediation, P.C.
901 Harvard Court, Suite A
Woodmere, New York 11598
Phone: 516.374.0074