Latest / BSPE Legal Marketing Podcast / How Are Frozen Embryos Handled in an LGBTQ+ Divorce in New York? - Juan Luciano

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How Are Frozen Embryos Handled in an LGBTQ+ Divorce in New York? - Juan Luciano · BSPE Legal Marketing Podcast

• 0:00
  How Are Frozen Embryos Handled in an LGBTQ+ Divorce in New York?
• 0:04
  When a marriage ends, frozen embryos can become one of the most emotionally charged and legally complex disputes a couple faces in New York.
• 0:11
  Unlike typical marital assets, frozen embryos are not divided through ordinary equitable distribution under New York's Domestic Relations Law Section 236(B).
• 0:21
  Instead, New York courts turn first to the fertility clinic consent forms and embryo disposition agreements that the spouses signed during treatment.
• 0:29
  When those documents do not clearly address what happens after divorce, disputes involving donor gametes, reciprocal IVF, and gestational carriers can grow far more complicated for LGBTQ+ couples.
• 0:40
  New York courts rely heavily on precedent from Kass v. Kass, a landmark Court of Appeals decision that enforced a couple's written IVF consent forms specifying that unresolved embryos would be donated for research.
• 0:52
  That ruling established a clear principle that New York courts will honor the parties' written choices when the language is clear and the agreement properly executed.
• 1:00
  Family Court Act Section 581-306 further governs agreements that transfer legal rights and dispositional control of stored embryos from one intended parent to the other following divorce, separation, or death.
• 1:13
  For an agreement to satisfy Section 581-306, it must be in writing and each intended parent must have received advice from independent legal counsel before signing.
• 1:23
  Genetic contribution alone does not automatically grant sole ownership of stored embryos, meaning a spouse who provided the egg in a reciprocal IVF cycle has no guaranteed claim to remaining embryos.
• 1:34
  New York law also makes an important distinction between controlling stored embryos and being named a legal parent of any resulting child.
• 1:42
  Under Section 581-306, a person who transfers dispositional control may withdraw consent to parentage in writing before embryo transfer, eliminating any legal parental obligation for a resulting child while still allowing the other party to proceed.
• 1:57
  Recent Manhattan decisions like E.L. v. A.S. from 2025 show that courts will enforce pre-existing disposition agreements even over a former spouse's objection, making the original language of those agreements critically important.
• 2:11
  A mutual-consent provision in a clinic agreement can create a deadlock after divorce, since neither party can act independently, which is why reviewing these documents with qualified legal counsel before and during divorce proceedings matters enormously.
• 2:25
  Juan Luciano, a Manhattan family law attorney admitted to the New York Bar in 2005, represents LGBTQ+ clients navigating embryo disputes, parentage questions, and all aspects of divorce and family law through practical solutions and respectful negotiation.
• 2:41
  This law firm handles cases from negotiation through court proceedings, helping clients understand how their agreements, prior consent, and New York statutes may affect control over stored embryos.
• 2:51
  If you are facing an embryo dispute as part of your divorce, reach out to Juan Luciano Divorce Lawyer - Manhattan, located at 347 5th Ave STE 1003, New York, NY 10016, United States, by calling 212, 537, 5859 to discuss your situation with a dedicated family law lawyer today.