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In Vitro Fertilization: Medical Breakthrough, or Nightmare Divorce?

Jorgensen, Brownell & Pepin, P.C.

With amazing scientific advances like in vitro fertilization (IVF), people who were previously unable to have biological children can now experience a more traditional parenting experience. Unfortunately, couples who have undergone or choose to undergo IVF treatments can often have a difficult road if they decide to divorce.

The courts in Colorado have decided that a pre-written agreement between couples takes precedence over any other factor when determining who will receive the pre-embryos. In the event you and your spouse will be undergoing IVF treatments, or have already undergone IVF treatments, it is imperative that you both come up with an agreement as to what to do with the pre-embryos in the event the marriage is dissolved.

Some important questions you should consider in your agreement include:

  • Will the pre-embryos be destroyed?
  • Will the pre-embryos go to one of the parties?
  •  If the pre-embryos do go to one party, will the pre-embryos be allowed to be used by the other party?  

If you decide not to pursue a written agreement, the court will determine which party receives the pre-embryos by using what is called a “balancing test.”

The court will consider five key factors in the balancing test before making a decision about your pre-embryos:

  1. The intended use of the party seeking to preserve the disputed pre-embryos
  2. The physical ability of the party seeking to implant the pre-embryos to have biological children through other means
  3. The original reasons for the parties for pursuing IVF
  4. Consideration of the hardships of the person seeking to avoid becoming a genetic parent
  5. Bad faith or leverage in the use of the pre-embryos in the actual divorce proceeding.

In the event you and your spouse are considering IVF treatments, are undergoing IVF treatments, or have already undergone IVF treatments, it would be best to come to a written agreement stating what will happen to the pre-embryos in the event you and your spouse get divorced. This agreement will ultimately save you a lot of time, legal fees, and provide additional certainty in a situation that tends to be highly emotional.

Please contact any of our family law attorneys at Jorgensen, Brownell & Pepin, P.C. to help guide you through this complicated issue.

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