Q My wife and I are getting divorced. We have twins and used IVF to have them. We have embryos still in storage. I was just informed that my wife intends to use the embryos to have more children with her new boyfriend who is in his 60’s and had a vasectomy years ago. There are so many problems with this situation overall including the fact she is leaving me for someone who could easily be her father and our sons’ grandfather. Now she wants to use my sperm to have children with him?

I can’t imagine this is OK, but my lawyer told me it all depends on what the clinic contract says. I found the contract and it says my wife has control. Can I object to this? I do not want more children, and I definitely do not want my wife to use my sperm to have children with someone else!

A First thing you should do is go to the clinic and give them a letter withdrawing your consent for anyone, including your wife, using any of your genetic material to create a child.

When there is a dispute over genetic material, your lawyer is right that the first place to look is to the clinic contract. Many of the IVF clinics have a form where you check the box to determine which spouse has control over the disposition of any remaining genetic material in the event of death or divorce. If you checked the box giving your wife the right to make the decisions, the inquiry does not end there as much as she might want you to believe it does.

The next step is to look at the public policy issue. Is it right to force someone to become a parent against his/her will just because there is an embryo available and the other party wants to use it after consent has been withdrawn? The answer is maybe. If using the remaining embryo would be the last opportunity for someone to become a parent — it is possible a court would say that outweighs your desire to NOT become a parent. But you already have twin children born of your consensual IVF process. Your wife is not facing her last opportunity to have children.

There is a case on point in your favor. Look up AZ v. BZ, 431 Mass. 150 (2000). In that case, the court deemed the clinic contract unenforceable and refused to enforce a contract which would have forced the husband to become a parent against his will, noting that forced procreation is against public policy.

Email questions to whickey@brickjones.com