Divorce and Fertility: Putting your Eggs in One Basket

Deciding to end a marriage is never easy. After investing so much of your life to one person, it can be incredibly daunting to think about starting over.  For women in their late thirties or forties whose marital investment included the potential of starting a family, divorce can pose an even more complex challenge.

While the idea of a “biological clock” is very real, with the success of freezing eggs, women can have children longer than ever before. Yet the egg-freezing procedure and the subsequent storage of the eggs is expensive and therefore not accessible to everyone.

But with the development in fertility comes a new legal question, which is further posed in a recent op-ed by Sarah Elizabeth Richards in The New York Times.  If a couple divorces, should the settlement include the freezing of the ex-wife’s eggs?  That is the question being posited by a New Jersey divorce attorney representing a 38-year-old woman who is currently asking her soon-to-be ex-husband to cover the $20,000 price tag to have her eggs frozen — granting her the opportunity to have the family that she believed she would have when she married.

Fertility is hard to judge, as the window varies from woman to woman.  But egg freezing provides a way to measure fertility and to put a number on it which can be quantified in a divorce proceeding.  Now, spousal support may include egg freezing. Alimony is typically paid when a spouse has made sacrifices throughout the marriage, for example, giving up a career which could now hinder future employment opportunities. This new case posits that the woman sacrificed years of her fertility with the promise of a family, which never came to fruition.  During the years of her marriage, she did undergo in vitro fertilization attempts which did not succeed. Yet, these attempts do indicate that having children was a goal of the couple.

While this case is the first of its kind, there have been prior divorce cases that have determined the ownership of frozen embryos.  The first American case of this kind was Davis v. Davis (Tenn. 1992), which ultimately ruled in favor of granting ownership to the wife (who wished to donate the embryo to a childless couple) over the husband (who wished the embryo to be destroyed).  While this type of case is of a similar nature, it differs because of the pre-existing state of the embryos and the fact that they include genetic material from both parties, giving both husband and wife a stake in the outcome. Freezing eggs for future use is unique because the eggs would be only the woman’s.

Ultimately, it is a multifaceted matter, with many factors coming in to play.  In the future, with the continued advancements of fertility treatments, couples may feel the need to stipulate a directive for such an outcome in their prenuptial agreement. At this time, the NJ couple is attempting to settle the issue out of court and no decision has been reached.