Premarital Agreements and ART: Can You Contract for the Disposition of Embryos?

• Date: 01 March 2023
• Author: By Katherine L. Provost

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art: law & practice

ByKatherine L. Provost

In November 2022, it seemed as if eve ry media outlet in

America broadc ast the story of twins Timo thy and Lydia

Ridgeway, who were born 30 ye ars after they were frozen

as embryos in 1992. Th ey are believed to hold the record

for being the longe st-frozen embryos known to result in a

live birth. Their par ents, Rachel and Philip Ridgeway,

residents of Ore gon, received the embryos throu gh a

donation made by an anony mous married couple to the

National Embryo Don ation Center in Knoxville, Tennessee, a

center whose webs ite claims it was created with the mission

to protect the lives a nd dignity of human embryos by

promoting, facilitatin g, and educating about embr yo

donation. The Ridge way twins’ birth story is, b y all accounts,

a happy one. But would that s ame opportunity for happin ess

have existed if the ano nymous couple who created the

embryos had mad e a decision to divorce? In a divorce setting,

would the existence o f a premarital agreement executed b y

the donating couple have ma ttered?

Couples regularly en gage in any number of discussions

Premarital Agreements and ART

Can You Contract for the Disposition of Embryos?

leading up to marriage. O ften these discussions incl ude

tough conversation s regarding everyone’s existing as sets and

nances and how the coup le will navigate their post-marital

world nancially. It is equally likely tha t couples will have

discussions ab out whether to have children, how many, and

how they see their family be ing created. For those couples

who choose a premar ital agreement after these di scussions,

the hope is that by signing a l egal agreement, they will have

certainty ab out the future, and they will be able to avoid

disputes, sho uld the marital relationship not turn out as

planned. At least on e court has found that prenuptial

agreements ac tually promote marital stabilit y by permitting

both spouses to lay o ut their expectations and to pro tect

their individually-held assets. See, e.g., In re Marriage of

Pendleton, 72 Cal.Rptr.2d 840 ,62 Cal.App.4th 751 (1998).

With more and more coup les choosing to delay marriage

until later in life and with a rise in e ntering into second, or

even third, marriages , premarital agreements are be coming

increasingly common. Couple this with the ever-increa sing

number of couples tur ning to in-vitro fertilization (IVF) to

create their family, and the ques tion arises, can engaged

couples include provi sions regarding the disposition of

embryos in their p remarital agreement?

Premarital Agreem ents are permitted in every US s tate,

but the specic ter ms which govern the creation and

enforcement of a prema rital agreement can vary greatly

from state to stat e. The Uniform Premarital and Marital

Agreements Ac t (UPMAA) and its predece ssor the Uniform

Premarital Agreem ent Act (UPAA) were drafted by the

National Conference of C ommissioners on Uniform State

Laws to promote great er uniformity and predictabilit y

between st ate laws relating to premarital agreemen ts in an

increasing transient s ociety. The goal was to ensure a

premarital agree ment that was validly entered into in one

state would be hono red by the courts of another state

where a couple might ge t a divorce. As of the writing of

this article, the UP MAA/UPAA has bee n adopted by 28

states and the Dis trict of Columbia. Even in the states tha t

have not adopted the UP MAA/UPAA, p remarital agree-

ments are still legal w ith specic requirements. Und er the

UPMAA and UPA A each party to a premarital agree ment

must have received fair a nd reasonable disclosure and have

Published in Family Advocate, Volume 45, Number 4, Spring 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.