While in vitro fertilization (“IVF”) presents an opportunity to become parents for a couple facing infertility or experiencing medical issues that may ultimately result in infertility, it also presents the possibility for a legal dispute should the couple separate in the future. The contracts that the parties enter into with the fertility clinic, and with each other, at the beginning of the IVF process are long, complicated documents that are often not well explained nor well understood. Because the parties do not necessarily understand the rights that they are each giving up under these contracts or contemplate how forfeiting these rights may affect each in the future, there can be legal disputes if a couple separates. Since many states have not addressed embryo disputes at the time of divorce through legislation, this issue has to be decided by state appellate courts when the issue arises. In 2018–2019, three state appellate courts were tasked with determining the correct way to handle the disposition of embryos as a matter of first impression.

This Note examines the way courts have decided to handle the disposition of embryos1 in contested divorces. There are three approaches taken across the country: the contract approach, the balancing of interests approach, and the contemporaneous mutual consent approach. This Note considers whether contracts with fertility clinics should be examined by courts more critically than contracts are reviewed generally. This Note argues that states deciding this issue as a matter of first impression should move away from blanket enforcement of contracts. This objective can be accomplished by employing a heightened standard of contract review before enforcing agreements, and instead using the balancing of interests approach in the event the clinic contracts fail to meet this heightened standard in a way that protects the interests of the parties.