Natalia Wilson, managing partner of Ain & Bank, is one of the most highly respected attorneys in Washington D.C. and is one of the nation’s leading matrimonial lawyers. Ain & Bank is a boutique law firm offering bespoke legal solutions and protections to some of the country’s most high-profile individuals from captains of industry to leading figures in the entertainment and sports world.
Wilson consults with clients who require advice and firm guidance to resolve matters of relationship breakdown, management of custody disputes, and preparation of prenuptial agreements. In addition, Wilson is at the cutting edge of what the legal world refers to as “modern family creation” advising clients on the legal implications of assisted routes to parenthood including in vitro fertilization (IVF), surrogacy, and more.
The miracle of pregnancy and childbirth is revered by cultures across the globe. The creation of life on earth forms the basis of mythology, old wives’ tales, and spiritual teachings that have endured since ancient times. This combined with cultural and social expectations, makes many couples feel pressure to conceive. According to the U.S. Dept. of Health & Human Services’ Office on Women’s Health, approximately 10 percent, or 6.1 million couples face infertility issues annually.
Expectant couples flaunt photographs of pregnancy gender reveals, birth announcements, baby showers, and beautiful, happy families celebrating on social media—adding to the pressure and disappointment for couples unable to conceive. For many, assisted routes to parenthood are the only options for possible conception.
Every year, thousands of intended parents decide to pursue modern family creation. Thanks to modern technology and the normalization of gestational carriers, IVF and surrogacy are popular options for many. But what are the potential pitfalls of such an arrangement?
“Although I’m a divorce lawyer by trade, nothing gives me more pleasure than to see couples embark on the journey of parenthood,” said Wilson. “Modern family creation is a dynamic area of family law and, unlike marriage, one in which many couples do not think about what might happen should their relationship end”.
Wilson points to the recently reported Virginia case of Jessee v. Jessee as a cautionary tale in which a trial court’s award of a frozen embryo to the wife in a divorce matter was reversed by the Court of Appeals. Wilson uses this judgment to illustrate the hurdles that some intended parents with stored embryos may face down the road and provides some helpful advice about what to consider when embarking on IVF.
Here are tips that couples should consider:
Is there a contract in place regarding what should happen to the frozen embryos in the event of relationship breakdown or divorce?
It is common for fertility clinics to provide proforma contracts stating that the ownership and/or rights to embryos are to be directed by court decree or settlement agreement. If the court has not yet issued a decree and if the parties have not reached a settlement agreement, there is no contract in place directing who should be awarded the embryos.
Don’t wait until things turn sour to determine the fate of the embryos. Spend time talking to each other about parenthood and what it means to each of you. Engage with experienced professionals who can represent your individual interests to draft an agreement much like a prenuptial agreement resulting in a contract recording what will happen to the embryos should the relationship end.
What does the court consider if it all goes wrong?
When parties do not have a contract in place dictating who should be awarded frozen embryos, the court will work to understand the interests of each party. The court will want to know why the parties engaged in IVF, whether each party is physically able to have biological children through other means and the impact that that carrying an embryo to term would have on the intended parent who may no longer wish to have children. The court will also try to understand whether one party is seeking the embryos simply to punish their former partner by preventing them from being awarded the embryos. The court has broad discretion.
Will the court compensate you financially if your ex-partner is awarded the embryos?
No. The issue of financial compensation is something clients struggle with. Many clients believe that to quantify the value of an embryo is tantamount to placing a monetary value on life. Others feel that it is their right to be awarded compensation in exchange for their genetic material.
Consider the full force impact of parenthood
When couples decide, whether by necessity or design, to embark on a journey to freeze embryos they must fully consider the implications of their choice. Although events leading to a decision to engage in IVF may have been painful, couples are afforded the time and space to think about the commitment they are making. Parenthood requires that couples recommit to each other as a parenting team and to the life for which they may ultimately be responsible. Think about why you want to be a parent and what it is about your partner that you think will make them a great co-parent.
Talk to each other
How does your partner articulate their desire to parent? Are you entering parenthood to please each other? Does one of you want to parent a child more than the other? If your partner is more apprehensive than you are that doesn’t necessarily mean that they will be a bad parent. Trust your instincts and communicate openly and honestly.
Don’t get swept up in the wave
Even when pursuing IVF treatments, it is all too easy to get swept up in the idea of parenthood because it is something that society expects. The path to parenthood is not created equal and the strain couples experience when undergoing assisted fertility treatments can place a real burden on an otherwise carefree relationship. Work to futureproof from the very first steps you take, preparation and planning may just help to prevent great heartache down the road.
“Creating a family is not something anyone should rush into,” said Wilson. “Make sure that you work together as a couple to thoughtfully and fully think through all of the potential future scenarios and address them.” She added, “Although we all hope that we’ll live happily ever after, it’s always better to be prepared, and having these in-depth discussions upfront will help you to better understand each other and become a stronger team.”
