ABA Family Legal Guide

Health-Care Law

Specific Issues in Health Care

Assisted Reproductive Technologies

What happens to the eggs, sperm, or embryos you don't use?

Whether you succeed in having all the babies you desire or decide to stop fertility treatments, there sometimes will be embryos or sperm left over. (There may be eggs, too, though it is still experimental to freeze eggs.) You can keep this genetic material frozen for possible future use by you, donate to another person or couple for their use in creating a child, donate it for research, or have it destroyed. Regardless of your decision, the clinic should ask you—before you start treatments—what you want to do with your genetic material. This is an important step. Unless you decide what you want done with it, the clinic will be unsure how to treat this material. You must have your decision in writing. Avoid relying on the clinic's informed consent documents regarding how you want your tissue treated. Create a separate document.

A problem arises when a couple divorces and cannot agree on what to do with the remaining embryos. This kind of dispute raises complex emotional, legal, and ethical issues.

If there is no agreement, the court will have to balance the interests of the people fighting for control. A New York couple had five frozen embryos remaining when they divorced. The wife asked for sole control of the embryos. The husband wanted to donate the embryos to the clinic. When they began their fertility treatments, the couple had signed an agreement stating that they would donate the embryos to the clinic. The court ruled in 1998 that the agreement was valid and the embryos were to be donated.