In a divorce that takes place in California, property generally stays with its owner. This is true even if that property happens to be a frozen embryo or multiple embryos connected with in vitro fertilization. However, a court must take other factors into account when deciding what is to happen to them. On one side, the law is loathe to force someone to become a parent against his or her will.
While that may give credence to the argument that they should be destroyed, the embryos may represent a person's only chance to become a biological parent. As there is little legal precedent for how such an item is to be divided in a divorce, a couple may be entering relatively uncharted territory by asking a judge to make a ruling. It is also unclear if any agreement that a couple makes with an IVF facility is legally binding.
In most cases, an IVF facility will continue to preserve an embryo unless storage fees are not paid. These fees can be as high as $1,000 per year. To avoid a legal fight or to perhaps make it easier to resolve a dispute regarding frozen embryos, a couple may want to determine ahead of time what is to become of them in a divorce.
The use of prenuptial agreements may help an individual come to a timely resolution of property division issues. If the document is deemed to be valid, it will determine who gets access to or gets to make decisions about joint assets such as a frozen embryo. Creating such an agreement may allow an individual to make his or her wishes known in a rational and clear manner. It may be advisable to talk to an attorney prior to signing such an agreement.