The importance of entering into an embryo disposition agreement, at the time you form embryos with your partner/spouse, cannot be overstated. In New York, a legally compliant embryo disposition agreement will ensure that your respective intentions, at the time the embryos were created, will be honored should you and your spouse/partner sever your relationship. This is particularly true when one or both of the parties becomes infertile after the formation of the embryos and the stored embryos provide them with the only opportunity to have a child genetically connected to them. For example, the Agreement may state that the legal rights to -and dispositional control over – the embryo(s) will be transferred to one of them in the event of their divorce. In that circumstance, the person who transfers dispositional control of the embryo is not a parent of any child born thereafter UNLESS they say in writing- before the embryo transfer- that they want to be a parent. While you will be required to sign embryo disposition forms (also called “advanced directives”) at the IVF clinic, clinics often allow their patients to change their dispositional elections, after the embryos have been formed. By contrast, once a New York Embryo Disposition Agreement is signed, the dispositional elections made in the Agreement cannot be changed except upon the mutual consent of both parties.
Embryo disposition agreements are legally enforceable provided they comply with statutory requirements. One critical requirement for enforceability is that the parties were represented by separate legal counsel in the review and execution of the agreement. If you are married, transfer of legal rights and dispositional control of the embryos only becomes effective upon your 1) living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or (2) living separate and apart at least three years; or 3) divorce; or 4) death. The person who transfers dispositional control of the embryo is not a parent of the child UNLESS they sign a writing, prior to the embryo transfer, stating that they want to be a parent.
Entering into an Embryo Disposition Agreement is an extremely important protection for those who create embryos with their own gametes knowing that they may not have the ability to form additional embryos, with their own genetic material, at a later time. Your failure to think carefully through your dispositional options at the time you form your embryos can have a profound impact on your ability to use them down the road.
