Fertility concerns rank high among newly diagnosed cancer patients of reproductive age. There are several options available to patients interested in preserving their fertility before treatment begins. An often selected choice among patients with a spouse or a committed partner is embryo banking.

Embryo banking is an assisted reproductive technology (ART) procedure in which embryos are created by mixing an egg with “the best” sperm to form an embryo and then cryopreserving those embryos for future reproductive use.  Individuals must go through the proper legal channels to ensure that there is a trajectory for the embryos should they not use them. Currently their options are disposing of them, donating them to research or another individual or continuing to store them.

As one would imagine, deciding the fate of your embryos can be a complicated process. What may sound like an ideal solution to your potential infertility, does not come without a series of ethical and legal concerns that need to be addressed and resolved prior to undergoing any procedures.  While there are several ethical and legal scenarios that come into play, I’d like to focus on the issue of divorce. What happens to the embryos when a couple is no longer a couple?

I’d venture to say that most married couples, particularly those that are making the choice to bank embryos, are not thinking about the theoretical demise of their partnership. Having said that, with a divorce rate as high as 60% in some areas, this is inevitably a scenario that will be presented to a couple contemplating this procedure. It forces them to look into the future, even if only imaginary, and determine the fate of their embryos if divorce or separation were on the horizon.

If a couple decides to store the unused embryos, and then later divorces, what happens if one or the other partner wants access to those embryos? What happens if you no longer want those embryos to be used, but you former partner strongly disagrees? What if a couple decides to allow the use of the embryos regardless of separation and/or divorce, and then find themselves in a difficult divorce where they can no longer stand to be in the same room together, let alone ponder the idea of co-parenting? How can they decide together what will happen to their embryos if they can’t even decide who gets custody of the patio furniture?

It’s hard to imagine theoretical scenarios becoming a reality when you’re making important future decisions and you’re a united front. Still, it’s an important part of the process that’s put in place to safeguard both parties in the event you’re not in a space where you can make these decisions together anymore. To learn more about the ethical and legal dilemmas in oncofertility, please visit the Oncofertility Consortium’s Social Science and Humanities Projects.



Hi Angela, thank you so much for you blog I found it very interesting reading.

Thanks Again


Scott David Stewart

On the surface this appears to be a difficult issue and one in which some appeals courts have had different conclusions and I anticipate that the US Supreme Court will make the final call on this topic. I think the analysis is actually quite simple. At the time the couple (married or not) agreed to store the embryo they equally consented. At the time of divorce or at any other time in the future when one of them changes their mind, we lose consent and to force a person to parent under these circumstances would wreak havoc on numerous “other” situations when we allow a person to revoke consent. Additionally, we have the added legal obligation of child support when we parent a child. We recently wrote about this in our Arizona Divorce blog when a mom was seeking support from “dad” when she surreptitiously saved and stored her companion’s sperm. Most courts have ruled in favor of the party revoking their consent to use the embryo.