Are Embryo Disposition Provisions in Clinic Forms Enforceable in Divorce Cases?

While a trend is emerging, the short answer is: it depends. It varies based on the legal precedent in your state and whether the agreement is deemed ambiguous or contradictory. Courts are chiefly interested in whether a couple’s intent is clear from the plain language of the agreement.

First of all, there are two types of agreements a couple may have regarding embryo disposition. The most common one is the agreement they signed with their fertility clinic. Those are typically boilerplate agreements provided by the clinic that a couple fills out before undergoing in vitro fertilization (IVF). Parties are usually not represented by attorneys when they are filling these out. The other type is an embryo disposition agreement between the parties. This is a negotiated agreement where both parties are represented by separate counsel. It is more detailed and customized than the clinic agreement, and takes state law into account.

Recent New York and California court decisions demonstrate that courts are enforcing unambiguous IVF clinic disposition agreements when couples divorce.

New York court finds clinic forms enforceable

In E.L. v. A.S., decided in November 2025, a divorcing couple disagreed about the fate of their two cryopreserved embryos. The wife, who had undergone five egg retrieval cycles and now faced perimenopause, argued these embryos represented her only opportunity for genetic motherhood. The husband wanted them destroyed.

The agreement at issue was their 2020 “Declaration of Intent” signed with their IVF clinic, which specifically addressed divorce scenarios. The agreement stated that a court decree, settlement agreement, or notarized written instructions would direct that the embryos would be used either to achieve a pregnancy in the wife or be donated to another couple.

The court granted the wife dispositional control, holding that the agreement was valid and enforceable. The decision reinforces the principle from Kass v. Kass, New York’s first court case on embryo disposition in divorce, that advance directives about embryo disposition “should generally be presumed valid and binding.”

California reaches same conclusion

Just months before the New York decision, California's Court of Appeal reached a similar conclusion in Pham v. Superior Court of Orange County (2025). Pham and Kon had signed an IVF agreement in which they had selected the option that the embryos should be “made available to the partner if he/she wishes” in the event of divorce.

After filing for divorce, Pham moved to discard the embryos, testifying he had “the legal, moral right to change his mind and withdraw the consent.” The California court rejected his arguments and awarded the embryos to Kon, holding that “where, as here, the parties have entered into a valid contract specifying how frozen embryos created by IVF shall be treated in the event of divorce, the parties’ contract governs.”

But not all clinic forms survive scrutiny

While these cases show that unambiguous clinic forms are enforced, agreements that do not clearly demonstrate the intent of the parties have failed to be upheld in courts across the country.

In Terrell v. Torres (Arizona, 2019), a couple's IVF contract contained contradictory provisions. One section said disputes would be resolved by a court, while other sections said embryos could only be used with mutual consent. The trial court found the contract ambiguous and couldn't enforce it as written. The case required extensive appellate litigation, and the ongoing case prompted Arizona to pass a statute in 2018 (A.R.S. § 25-318.03) that now explicitly overrides any prior written agreements, awarding embryos to the spouse who intends to use them for conception regardless of what the clinic forms indicate.

In Szafranski v. Dunston (Illinois, 2015), a couple signed a clinic’s Informed Consent form stating that “no use can be made of these embryos without the consent of both partners.” When the relationship ended and one partner objected to embryo use, the court held that the clinic form merely governed the clinic's obligations and it did not control the relationship between the parties. The form explicitly contemplated that the parties might have a separate agreement, and the court enforced an oral agreement made the day before signing the clinic form. The case demonstrates that clinic forms may be designed to protect the clinic from liability, not to govern disputes between partners.

Similarly, in Huenke v. Dennis (Maryland, 2022), a married couple signed multiple fertility clinic forms while undergoing IVF. The forms mentioned separation and divorce but provided no options for the parties to select regarding embryo disposition in those scenarios. The forms only stated that such events would automatically revoke consent. The court found that the clinic forms did not qualify as an express written agreement (in the case of separation and divorce) because they were third-party form contracts that expressed the clinic's policy, not the parties’ intent. However, the court noted that the forms were still relevant for understanding the parties’ intent. The forms showed that the parties consistently agreed over several years to thaw and discard embryos in certain scenarios, which contradicted one party’s testimony about religious beliefs. The court ultimately found that the parties had an enforceable oral agreement made during extensive discussions that they would not implant the remaining embryo unless they were living together and happily married. The court awarded the embryo to the husband for destruction, finding that the original purpose of creating the embryo (to have a child as a happily married couple) no longer existed, and forcing the husband into unwanted parenthood would impose significant financial and emotional burdens.

Why proper legal counsel might be best practice for you

Advance planning with experienced attorneys is considered best practice for many folks starting a family via assisted reproductive technology. While agreements created by the IVF clinic with clear divorce provisions can be enforced, relying on clinic forms alone could lead to lengthy litigation because they are designed to protect the clinic from liability, not to demonstrate the intent of the couple undergoing fertility treatment. Because courts have decided that clinic agreements might not be enforceable in certain contexts, it’s important to speak with an attorney licensed in your state who can discuss any relevant legal precedent and provide you with options.

Meet Attorney Meg Mars

Meg Mars is a Colorado-licensed attorney working in reproductive and family formation law, with a distinctive background in international human rights advocacy. To learn more about this or if you would like to discuss our other Assisted Reproductive Technology Law services, schedule a free consult by clicking here!