Husband and Wife want to have a baby.

They resort to in vitro fertilization and freeze some of the embryos created for possible future use.

Husband’s and Wife’s marriage breaks down.

They are divorcing.

What happens to their frozen embryos?

Or, more precisely, which spouse gets to decide what happens to their frozen embryos?

To some extent, that depends on which state the couple live in. The case law, to the extent that there is state case law, goes every which way.

Prudence may suggest coming to an agreement on this issue before going down that road.

That may be done as part of a broader prenuptial agreement or postnuptial agreement.

Or it may be incorporated into an agreement with the in vitro fertility center.

The perfect solution? In theory, yes, but, in practice, maybe not so much, at least, depending upon where the interested parties live.

Because at least two states, New Jersey and Massachusetts, have reportedly cast such agreements aside in the face of one parent’s subsequent change of heart to no longer wanting to become a parent to a new baby.

Florida, on the other hand, not only recognizes agreements regarding frozen embryos but actually mandates that such agreements be made in advance (although this is not divorce-specific law but more a requirement of reproductive rights law).

It is worth noting, however, that, in the absence of such an agreement, Florida law explicitly recognizes the legal rights of both spouses over the embryos. A very good reason to make an agreement in advance and greatly reduce, if not eliminate, the uncertainty in the event of a later divorce.

But if the couple neglects to enter an agreement (or, presumably, if the agreement is ambiguous), it remains anyone’s guess what a court will decide to do with a couple’s frozen embryos.

Read more in this Wall Street Journal piece: In Divorce, Who Gets the Embryos?