Frozen Embryos, Divorce, and the Next Wave of New York Assisted-Reproduction Cases
New York matrimonial law is entering relatively unfamiliar territory. As IVF, embryo preservation, donor conception, and surrogacy become increasingly common, divorce and family courts are being asked to resolve questions that did not legally exist a generation ago.
Who controls frozen embryos after divorce?
Can one spouse withdraw consent after previously agreeing to a specific disposition?
What happens when fertility-clinic paperwork conflicts with a spouse’s wishes years later?
E.L. v. A.S., 2025 NY Slip Op 25261, decided by Justice Linda Capitti in New York County Supreme Court, is a strong example of how consequential these questions have become.
The divorcing spouses had undergone years of fertility treatment and ultimately created two chromosomally normal frozen embryos. Before the marriage broke down, they signed written “Declarations of Intent” addressing what should happen to the embryos if they later divorced or separated. The agreement specifically contemplated divorce and provided for a court order directing the embryos to be used to achieve a pregnancy in the wife or, alternatively, donated to another couple. The parties expressly did not select destruction or research as their preferred disposition.
Once the divorce began, however, the parties wanted very different things.
The wife asked the court to award her the embryos for implantation. The husband wanted the embryos destroyed and argued that he had withdrawn his consent. He also contended that their earlier agreement was no longer enforceable because New York subsequently enacted Family Court Act § 581-306, which imposed additional requirements, including independent legal counsel, for certain embryo disposition agreements.
The court rejected both arguments. The judge concluded that a spouse cannot necessarily sign an agreement specifically deciding what happens to embryos following a divorce and then erase that agreement simply because divorce actually occurs.
Why the Original IVF Agreement Mattered
The decision builds upon the principle established by New York’s Court of Appeals in Kass v. Kass: courts generally should respect clear advance agreements concerning the disposition of cryopreserved embryos.
That principle is especially important because fertility decisions often occur years before a marital dispute. Couples completing IVF paperwork may be focused on achieving a pregnancy rather than planning for divorce. Yet the terms they initial at the fertility clinic can eventually determine whether embryos are implanted, donated, preserved, or destroyed.
In E.L. v. A.S., the agreement did more than authorize storage. It specifically anticipated divorce or separation and established what would happen if that contingency occurred. The court found that changing those selections required mutual written agreement. Allowing one spouse to revoke the agreement after divorce would effectively eliminate the very protection the divorce provision was intended to provide.
Justice Capitti therefore awarded the embryos to the wife for implantation and denied the husband’s request that they be destroyed.
The Decision Has Important Limits
The case should not be read to mean that a New York court will generally allow one former spouse to use embryos whenever the other spouse objects. The result depended heavily on the language of this particular agreement.
New York courts have reached different conclusions when the parties’ IVF paperwork did not clearly state what should happen following divorce. The court distinguished Finkelstein v. Finkelstein, where the agreement allowed withdrawal of consent but did not specifically allocate control of the embryos in the event of a future divorce. There, withdrawal of consent prevented further use.
The question is not simply, “Who wants the embryos more?” Courts will closely examine what the parties actually agreed to before the dispute began. Timing also mattered. The agreement in E.L. v. A.S. was signed in 2020. Family Court Act § 581-306 became effective afterward. The court held that the later statute could not retroactively invalidate an agreement that complied with the law existing when it was signed. That does not mean couples entering embryo disposition agreements today may ignore New York’s current statutory requirements.
Finally, this is a Supreme Court trial-level decision. It is persuasive and important, but it is not a new statewide pronouncement from the Appellate Division or Court of Appeals.
New York enacted the Child-Parent Security Act and Family Court Act Article 5-C to create a statutory framework for gestational surrogacy, assisted reproduction, embryo disposition, and intended parentage. Courts are now beginning to address disputes over what happens when agreements fail to satisfy those statutory requirements.
For New York City couples undergoing IVF, preserving embryos, considering surrogacy, or entering marriage with existing reproductive material, fertility paperwork should not be treated as routine medical documentation.
A document signed at an IVF clinic may eventually govern an extraordinarily personal question years later. Couples should understand what the agreement says about divorce, separation, death, withdrawal of consent, implantation, donation, and destruction before signing it.
These issues can also be addressed as part of broader marital planning. Where appropriate, a prenuptial or postnuptial agreement can acknowledge existing fertility agreements, clarify the parties’ intentions, and reduce the likelihood that reproductive material becomes another contested issue during a divorce.
At Mindin & Mindin, P.C., we represent New York clients in matrimonial matters involving complex reproductive and family-planning issues, including prenuptial agreements, embryo disposition, and disputes involving assisted reproduction. As New York’s appellate courts continue defining this rapidly developing area of law, careful planning before a dispute arises is becoming more important than ever.