Most women freeze their eggs to preserve options for their future fertility. Others may choose to freeze embryos, which are created when an egg is fertilized by sperm. Since embryos are further developed than eggs, there’s more biologic information available and preimplantation genetic testing (PGT) can be performed, making it easier to predict success rates for a future pregnancy. Embryo freezing may be the preferred option for women who already know they want to use a specific partner or donor’s sperm.
While embryo freezing can be a great option for some, it also introduces additional layers of complexity. Unlike eggs, embryos involve genetic material from two people, which means both parties have legal and ethics interests, and thus, courts may treat them differently. As relationships evolve, partners separate, or priorities shift, decisions about embryos can become emotionally and legally charged, especially when there isn’t a clear agreement in place from the start.
This is why the legal foundation you set at the beginning of your fertility preservation journey matters just as much as the medical one.
What happens if a couple separates or divorces?
Most states require mutual consent for an embryo transfer. This means:
One partner cannot use embryos without the other’s consent
Courts often prioritize a person’s right not to procreate
Many couples assume the clinic disposition forms they signed early in treatment will control what happens, but those forms are typically administrative, not legally binding. So, they often don’t resolve disputes when relationships change.
If the couple has a well-drafted embryo agreement or a Reproductive Estate Plan (REP), courts usually defer to it. Without one, decisions become unpredictable and can lead to prolonged legal conflict. Embryos may remain in storage indefinitely if the involved parties don’t consent to either use or destruction. Clinics may refuse to act at all without a court’s decision.
Can one partner use the embryo alone?
Usually, no. Courts rarely allow one person to use embryos over the other’s objection, as this forces parenthood.
A notable exception is Hecht v. Superior Court (California), where the court allowed posthumous use of sperm only because the deceased partner left explicit written instructions. Without that clear documentation, his partner would not have been permitted to proceed.
When one partner dies, courts require specific, verifiable proof of intent. Generally this goes beyond discussions. Courts look for wills, written directives, or REPs. Without them, surviving partners are almost always denied permission to use embryos or gametes, requiring destruction of the embryos or gametes.
Why is your legal plan just as important as your medical plan?
Embryo disputes can become difficult and emotional. Your legal agreements are the one place you can return to when circumstances shift. They protect both parties, your reproductive autonomy, family-building goals, and your peace of mind.
Fertility is one of the most meaningful journeys people take. The medical care, the emotional support, and the legal planning all work together. When these three areas are aligned, people can move through the process with peace of mind.
Rijon Charne, Esq. is a licensed attorney practicing fertility law in California. After obtaining a dual degree in Psychology and Philosophy from the University of Texas at Austin, she earned her Juris Doctorate from the University of San Diego Law School. Rijon has a long standing history of advocating for children' s rights. Having undergone fertility treatments herself, she is driven to guide individuals through the intricate legal process of assisted reproductive technology. She handles all aspects of fertility law, including egg donation, sperm donation, embryo donation as well as the complicated area of surrogacy law.
Learn more about her practice, Sunray Fertility, here.
