Who Gets the Embryos When Partners Split? Important Key Factors You Should Know


There’s something magical when a couple decides to have children, expanding their family out of love. Sometimes it happens effortlessly, other times assistance is needed. 


When a couple creates embryos using in vitro fertilization, the last thing on their mind would be a separation or divorce. But the fact is, it does happen and it’s sad. 


Now what? Who gets the embryos that were created? How is this decided? 


These are just some important questions to know before getting started.




Because embryos as well as both parties involved need to be protected. Iĺl explain.



Before embryos are created, there are a lot of forms that need to be reviewed and signed.


These forms contain specific information about the in vitro fertilization process including: 


  • The process and risks;
  • How many embryos are to be harvested;
  • How long do you want to keep them frozen;
  • Do you want to donate them or destroy them at the end of the cycle;
  • Who will have custodial rights of the embryos;
  • What happens if you separate or divorce, etc.


These questions help to outline a few scenarios and broaden your knowledge on what to expect. Especially the custodial rights of the embryos.


With infertility and divorce rates on the rise more often than not a custodial battle for the embryos takes place.


What can you do to help protect against this? Let’s continue.


There are many factors to consider when thinking about who should get the embryos in case two people split up:

  • What should you know about state’s laws on embryo disposition if your spouse and you break up or divorce? 
  • What’s best for any partner left behind?
  • What’s best for the child-keep them frozen, donate them, or use them with someone else. 
  • How does religious beliefs affect which partner will get custody of the embryos? 
  • Are there any considerations for same sex partners parting ways or divorcing? 


Having a detailed agreement between both parties that address each of these concerns can help to avoid the need for any future litigation. Even though this isn’t always the case.

In Virginia, a gay couple signed forms at the fertility clinic and agreed that since Mr. Goldin used his sperm to create the embryos he would have sole custody over any remaining embryos should they split in the future. The couple unfortunately split but the spouse no longer wanted Mr. Goldin to have custody of the remaining embryo. A legal battle began and the Court award Mr. Goldin custody based on that signed agreement.


Trying to conceive a child challenges even the strongest of couples. 


It’s very important to not only discuss your intentions with your partner but to know the consequences of your choices. 


Meeting with a family law attorney can help bring you some clarification of your rights in a time of confusion.


Need assistance? Reach out to me today.