In today’s modern family life, you may be making several major decisions at once. As you plan your wedding, you may also plan your future family, including in vitro fertilization (IVF) and the creation of frozen embryos.
As you discuss long-term financial and personal arrangements, one issue can be easy to overlook: what happens to those embryos if the marriage ends?
It may feel uncomfortable to raise that question now, but avoiding it can create serious conflict later. Frozen embryos carry emotional weight, future parenting expectations and substantial financial investment. A prenuptial agreement may help you address these matters while you and your future spouse can still approach them thoughtfully.
Why frozen embryos can create disputes
When you create embryos through IVF, you likely expect to build a shared future. Divorce can leave you and your spouse disagreeing about whether to use the embryos and who has legal authority over that decision.
Couples often dispute who may use the embryos and whether to keep them in storage or to discard or donate them. For one person, the embryos may represent the chance to have a biological child. For the other, being tied to parenthood after divorce may feel unfair or unwanted. That tension can make settlement more difficult.
How Georgia may handle embryo disputes
In Georgia, courts have begun to address disputes over frozen embryos, but no single rule governs every case. In a 2023 decision, Smith v. Smith, the Court of Appeals treated the issue as one of first impression and looked to other states for guidance.
The court emphasized that written agreements between the parties, such as clinic forms or other contracts, should control when they clearly define how the embryos will be handled. If no agreement applies, courts may weigh each person’s respective interests or require mutual consent at the time of use. Outcomes depend on the specific agreement and the facts of the case.
How a prenup may help you plan now
Because courts in Georgia often give weight to written agreements, a prenuptial agreement may give you greater control over the future handling of frozen embryos if your relationship changes. Rather than leaving those decisions to a court, you and your future spouse can define the terms in advance. A prenup may address:
- Who has decision-making authority over the embryos if the marriage ends
- Whether both spouses must agree before any future use
- How long the embryos will remain in storage
- Who will pay ongoing clinic and storage costs
- What will happen to the embryos if one spouse dies
Discussing these terms may also help you and your partner align expectations about parenthood, finances and long-term plans before marriage.
Why this conversation is easier now than later
It is easier to discuss difficult scenarios when you and your partner still share the same expectations and goals. Before conflict enters the picture, you can think carefully about what feels fair and what each of you want for the future.
If divorce begins, those same decisions often become harder to resolve. Emotions intensify, positions harden and what once felt like a shared plan may become a dispute with lasting consequences. Planning ahead does not mean you expect the marriage to fail. It reflects that some decisions carry long-term impact and deserve attention while you still have the space to address them thoughtfully.