These are stressful times. With an endless pandemic, virtual get-togethers for adults, a virtual school for kids, civil unrest and a deeply divided presidential election, it’s no wonder divorce rates are rising. Also on the rise are questions about the ability to continue fertility treatments during a relationship breakdown.
Can fertility treatment continue during a divorce?
This is not a new topic, but it is becoming more common as unprecedented events make us rethink what is important in life. Like that dream of having a child. Or not stay in an unhealthy marriage. And sometimes these two come up right away.
Fertility clinics need to reconsider their policies when patients reveal they are divorcing. It might seem curious to take care of a fertility clinic, but hey, it’s not exactly a process that lends itself to a lot of privacy. Not to mention, clinics have very real legal risks when it comes to treating a patient during divorce.
I had the opportunity to chat with Lisa Rinehart, RN, BSN, JD. As a trained nurse who became a lawyer and as the chief operating officer of a renowned fertility clinic, Rinehart is all too familiar with these issues. She notes that no fertility clinic or doctor should forget a case called Gladu.
The spirit of Gladu. Richard Gladu and his wife sought treatment at a fertility clinic and successfully fathered a daughter. Later, despite marital problems and without Gladus ‘consent, Gladus’ wife returned to the fertility clinic to undergo another embryo transfer procedure with the couple’s remaining embryos. The procedure was a success and Gladu’s wife became pregnant with another daughter. However, the couple soon divorced.
Gladu sued the fertility clinic, arguing that the clinic could not have relied on consent from several years earlier (where he had consented to the procedure with his wife for their first daughter) and should not have helped his wife conceive without his Permission and should now be responsible for the upkeep of the illegally conceived child. Every fertility clinic’s nightmare came true. Gladu actually prevailed and received six-figure damages against the clinic.
Rinehart stated that although the case is old – since the early 2000s – it has had a lasting impact on clinics that remain reluctant to perform fertility treatments on a married patient without confirming the spouse is fully on board. This includes confirmation that the spouse is still on board regardless of the forms the spouse has recently or recently signed.
What can a hopeful expectant parent do when time is of the essence in fertility treatment and divorce processes are painfully slow?
Rinehart advises always looking for informed consent forms signed with a fertility clinic in step one. When a patient goes through fertility procedures, they inevitably sign long – and possibly even review – consent forms. In modern times, these forms usually contain disposition conditions for cryopreserved eggs, sperm or embryos, including instructions in the event of death or divorce, or when the cryopreserved material is not claimed.
Rinehart stated that most courts will review (and possibly obey) what has been agreed between the parties on the consent forms – whether that is a party that can use the embryos, the embryos destroyed, or embryos donated to others. There are of course exceptions. This includes an Arizona law that requires a judge directing a marriage dissolution to assign cryopreserved embryos to the party most likely to give birth, regardless of any documented agreement between the parties to the contrary.
What if they are not embryos? Do I know I want to move forward with fertility treatment?
Presumption of marriage. Not so fast. Even if cryopreserved embryos are not part of the equation, there can be several other legal obstacles. One of them is the conjugal presumption of “fatherhood” or ancestry. State law generally provides that a child born to a couple during the marriage is the legal child of both spouses. That is, even if either or both are not genetically related to the child – and may not even have been part of the process of fertility treatment or conception (or perhaps knew nothing about it!) – that spouse can still be legally suspected of having a parent all rights and obligations. Including 18 years of child benefit.
The details of the marital presumption vary from state to state, but in my home state of Colorado, for example, it applies to any child born within 300 days of the marriage being dissolved. That’s a long time. And it means that the conjecture can hold even if the pregnancy was conceived after the divorce!
Marriage goods. In addition to the presumption of ancestry, another problem is the question of what constitutes “marital property”. Like the conjugal presumption, this legal construct varies from state to state. In a non-communal property state, conjugal property often means the assets and debts acquired during the marriage. In general, if the marriage is dissolved, this property must be divided fairly between the spouses. If a woman has gone through egg cryopreservation, does that mean she is splitting her eggs between the parties? Hopefully not. Most state laws, however, were not written with the complexities of cryopreserved reproductive tissue in mind, leading to many unanswered questions and much room for debate.
There may be short cuts to moving forward, including a fertility treatment agreement between prospective exes or a forked divorce court order to resolve fertility issues and resolve the rest of the divorce issues in due course.
In conclusion, whether you are a patient or a clinic, you should seek assistance from your friendly, neighborhood-backed reproductive technology attorney. Before you become another gladu. You will not regret it.
Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].