Texas law permits married couples to have a child through assisted reproduction. The law provides a considerable number of options for spouses who are struggling to conceive a child on their own. They can obtain the assistance of a donor, work with a surrogate mother, or pursue in vitro fertilization (“IVF”). This begs the question of – when couples divorce, what happens to any embryos in existence at the time of divorce? This blog post will address this question.

The process of IVF involves fertilizing a woman’s ova in a laboratory procedure using the husband’s or a donor’s sperm. The resulting embryos are transferred to the uterus of the potential mother, in hopes that a viable pregnancy may occur. Because the IVF procedure can produce more embryos than may be used, the extra embryos may be frozen for future use.

Texas law favors both spouses consenting to the assisted reproduction process in writing. This makes sense. Having a child is obviously a lifelong commitment, and it is good policy to require the agreement of both spouses before placing this responsibility on the other spouse. When it comes to a divorce, Texas law makes some things very clear. If the parties divorce before a pregnancy occurs by assisted reproduction, the former spouse will not be a parent of the child unless there is a written agreement. Also, a former spouse may always withdraw any prior consent given to the use of the embryos.

If there are embryos in existence at the time of divorce, the embryos are something that should be discussed by the spouses. There are several things that can happen. The embryos can be disposed of; the embryo can be awarded to a spouse; or the embryos could be donated to a third party. Deciding what to do with the embryos must balance the interests of all parties involved. One spouse may not wish to be a parent or have their genetic material used. On the other hand, the other spouse may have a valid and important desire to become a parent.

It is common for most spouses to sign a written agreement about the embryos in the event of a divorce. Unfortunately, Texas law is less than clear about what will happen to embryos after divorce or the death of one spouse. If the spouses have signed an agreement addressing this issue, they can seek enforcement of the agreement in court. If there is no agreement addressing what happens to the embryo in the event of divorce, Texas law is still undecided about how to treat this issue.

Given the important consequences of these decisions, it is important to discuss these issues with a lawyer with experience in these issues before proceeding with assisted reproduction.

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