Ohio does not currently recognize frozen embryos created through IVF as legal persons. However, that does not mean embryos are treated like ordinary property or that every decision about their future has a simple legal answer.
IVF is legal in Ohio, but questions about embryo control, consent, and future use can become important when circumstances change. These decisions may also affect intended parents who create embryos now with plans to use a gestational surrogate later.
Understanding Ohio’s legal framework before creating embryos can help you make informed decisions about the family you are working toward. With Foster + Bloom, you can plan beyond the immediate IVF cycle and understand how the choices you make now may affect the future use of your embryos.
Does Ohio Law Consider an Embryo a Person?
Ohio does not currently recognize frozen embryos created through IVF as legal persons. While Ohio law protects unborn life in certain situations, those protections do not automatically apply to embryos stored outside the body.
Ohio’s criminal code defines an “unborn human” as a human organism from fertilization until live birth. However, when defining a “person” for purposes of criminal offenses, the law includes an unborn human only once they are capable of surviving outside the womb.
Ohio courts have also addressed this distinction. In Penniman v. University Hospitals Health System, Inc. (2019), the Eighth District Court of Appeals declined to treat frozen embryos destroyed in a fertility clinic freezer malfunction as legal persons under Ohio law.
Ohio’s Protections for Fertility Treatment
Ohio voters approved Issue 1 in November 2023, adding Article I, Section 22 to the Ohio Constitution. The amendment took effect on December 7, 2023, and specifically protects the right to make decisions about fertility treatment.
This protection does not give frozen embryos the same legal status as children. Instead, it protects an individual’s ability to make reproductive decisions, including decisions involving fertility treatment.
For intended parents, the distinction is important: Ohio protects access to reproductive decision-making while continuing to treat frozen embryos differently from children under the law.
How Ohio Embryo Laws Affect IVF
Standard fertility treatment in Ohio can include creating, testing, freezing, storing, and transferring embryos. For intended parents, this generally means:
- Embryo Creation: Eggs may be fertilized through IVF, and Ohio does not currently impose a specific limit on the number of embryos that may be created during a treatment cycle.
- Preimplantation Genetic Testing (PGT): Embryos may undergo genetic testing before transfer, including testing for certain chromosomal conditions or inherited genetic disorders.
- Freezing and Storage: Embryos may be frozen and stored for future reproductive use, subject to the terms of the fertility clinic or storage facility.
- Embryo Transfer: Embryos may be transferred during fertility treatment, including potential future use with a gestational surrogate.
- Embryo Disposition: Embryos that are no longer needed for treatment may have several possible options, including continued storage, donation, or discarding, depending on applicable law and the parties’ consent documents.
Ohio does not currently impose broad IVF-specific restrictions on these standard procedures. However, decisions about the future use or disposition of embryos can raise separate legal questions, particularly when more than one person has decision-making rights.
Embryo Disposition Laws in Ohio
When embryos remain after an IVF cycle, intended parents have several options for what happens next. The options available can depend on their prior consent, agreements with the fertility clinic or storage facility, and the circumstances surrounding the embryos. Common embryo disposition options in Ohio include:
- Continued Storage: Embryos may remain frozen for possible future use, subject to the storage facility’s policies, fees, and consent requirements.
- Future Reproductive Use: Embryos may be preserved for a later transfer, including potential use by an intended parent or with a gestational surrogate.
- Embryo Donation: Remaining embryos may be donated to another person or couple for reproductive use. An embryo disposition agreement can document the parties’ intentions and address important legal considerations surrounding the donation.
- Donation to Research: Embryos may potentially be donated for approved research when the receiving program accepts them and applicable consent requirements are satisfied.
- Thawing and Discarding: Intended parents may choose to have remaining embryos thawed and discarded when permitted by applicable law and the facility’s procedures.
These choices can have different legal consequences, particularly when embryos were created by two people or with donated eggs or sperm. Clear documentation can help establish what should happen to the embryos if family-building plans later change.
Are IVF Consent and Embryo Disposition Agreements Enforceable in Ohio?
Yes, Ohio courts have enforced written agreements addressing what happens to frozen embryos after IVF. Courts generally look first to the agreements intended parents signed during fertility treatment, although the outcome depends on whether the agreement clearly addresses the dispute.
In Reeder v. Reeder (2023), an Ohio appeals court upheld a clinic agreement requiring both spouses’ written consent before either could use their frozen embryo to achieve pregnancy. When an agreement does not clearly resolve a dispute, however, a court may need to consider the circumstances and each person’s reproductive interests.
Clinic Consent Forms vs. Individualized Legal Agreements
Clinic consent forms can carry legal weight, but they may not address every situation that could affect your embryos. An individualized embryo disposition agreement can address issues such as separation, death, changing reproductive plans, or future surrogacy in greater detail.
The important distinction is what each document actually says. Before relying on a consent form or agreement, intended parents should understand which future circumstances it covers and which decisions it leaves unresolved.
What Happens to Frozen Embryos in a Divorce in Ohio?
When former spouses disagree about frozen embryos, Ohio courts first consider whether their existing IVF agreements resolve the issue. If they do not, courts may consider each person’s reproductive interests, including one person’s desire to use the embryos and the other’s desire to avoid future genetic parenthood.
Ohio appellate courts have also reached different conclusions about whether frozen embryos should be treated as marital property, making the specific facts and applicable case law important to the outcome.
Key Ohio Embryo Divorce Cases
Three Ohio appellate decisions help illustrate how courts have approached these disputes:
- Kotkowski-Paul v. Paul (11th District, 2022): When the spouses could not produce their signed clinic agreement, the court upheld a decision preventing the wife from using the embryos to become pregnant. The court weighed both spouses’ reproductive interests, including the husband’s desire to avoid having another biological child.
- Reeder v. Reeder (1st District, 2023): The court enforced a clinic agreement requiring both spouses’ written consent before their frozen embryo could be used to achieve pregnancy. The case shows how an existing IVF agreement can control what happens after divorce.
- E.B. v. R.N. (9th District, 2024): The court rejected treating frozen embryos as ordinary marital property and allowed the wife to use embryos created during the marriage. Unlike Kotkowski-Paul, both former spouses wanted the embryos to result in children but disagreed about who should use them.
Together, these cases show that there is no single rule that resolves every embryo dispute after divorce in Ohio. Existing agreements, each person’s reproductive interests, and the circumstances of the case can all affect the outcome.
What Happens to Embryos if an Intended Parent Dies in Ohio?
A surviving spouse or partner may be able to use frozen embryos after an intended parent’s death, but that right is not automatic. Prior consent, existing embryo agreements, and clinic requirements can all affect whether the embryos may be used.
Posthumous conception can also raise separate questions about parentage and inheritance. For example, Ohio law generally limits inheritance under a will for children born more than 300 days after a person’s death unless the will provides otherwise.
For intended parents who want embryos to remain available after death, reproductive instructions and estate planning should address those wishes consistently.
What if You and Your Partner Disagree About Using Your Embryos?
Embryo disagreements can arise even when a couple remains together. One person may want to proceed with a transfer while the other changes their mind about reproductive use.
When that happens, the parties’ existing IVF agreements and consent documents become important. If one person withdraws consent, whether an embryo may still be transferred, donated, or discarded can depend on what those documents require and the circumstances of the dispute.
If the disagreement cannot be resolved, a court may ultimately need to determine what happens to the embryos.
Does Ohio Protect IVF and Fertility Treatment?
Yes. Ohio provides constitutional protection for fertility treatment as part of an individual’s right to make reproductive decisions. Voters approved this protection in November 2023, and it took effect on December 7, 2023. Under Ohio’s constitutional protections for reproductive decisions:
- Fertility Treatment Is Expressly Protected: The right to make reproductive decisions specifically includes fertility treatment, providing direct protection for people pursuing IVF and other assisted reproductive care.
- State Interference Is Limited: Ohio generally may not burden or interfere with this right unless it can meet the strict requirements established by the constitution.
- Providers Receive Protection: The amendment also prevents the state from penalizing or prohibiting a person or entity that assists someone in exercising this right, subject to the amendment’s limitations.
These protections are significant for access to IVF, but they do not answer every question involving frozen embryos. Issues such as embryo control, disposition, consent, and disagreements between intended parents can still depend on agreements and Ohio case law.
How Ohio Embryo Laws Can Affect a Future Surrogacy Plan
If you create embryos with plans to use a gestational surrogate later, your IVF documents should clearly address who may authorize their use and whether they may be transferred to a surrogate. If donor eggs or sperm were used, the donor documentation should also support the intended parentage plan.
Ohio courts have recognized the connection between embryo use and surrogacy. In R.N. v. E.B. (2026), the Ninth District held that an order allowing a woman to use embryos awarded to her did not prevent her from using a gestational surrogate.
Making sure these documents align from the beginning can help avoid conflicts between your IVF decisions and future surrogacy plans.
Decisions to Make Before Creating Embryos in Ohio
Before creating embryos, intended parents should think beyond the immediate IVF cycle and consider how their embryos may be used if their plans or circumstances change. Key decisions to address include:
- Reproductive Use: Who may authorize an embryo transfer, genetic testing, or movement to another clinic or storage facility?
- Separation or Divorce: What should happen to remaining embryos if the relationship ends?
- Death or Incapacity: May the embryos be used after an intended parent’s death, and who may make decisions if someone becomes incapacitated?
- Future Surrogacy: May the embryos later be transferred to a gestational surrogate, and do any donor documents support that plan?
- Long-Term Disposition: Should remaining embryos stay in storage, be donated, used for approved research when available, or be discarded?
Relying solely on standard fertility clinic intake forms can leave significant legal gaps. Partnering with an experienced ART attorney ensures that your wishes are documented with total clarity.
How Foster + Bloom Helps Intended Parents Plan for the Future of Their Embryos
Creating embryos may be one step in your family-building plans, but the decisions you make during IVF can follow those embryos for years. Foster + Bloom helps you look beyond the immediate treatment cycle and consider how today’s choices fit into the family you plan to build. Our ART attorneys can help you address:
- Embryo Control and Disposition: Clearly documenting who may make decisions about future use, storage, donation, or other disposition.
- Changes in Circumstances: Planning for what should happen if a relationship ends, an intended parent dies, or reproductive plans change.
- Donor Conception: Making sure donor documentation supports your intended family-building plans.
- Future Surrogacy: Reviewing embryo and donor documents with potential gestational surrogacy in mind.
Talk to a Fertility Law Attorney in Ohio Before You Create Embryos
Your path to parenthood deserves trusted guidance and complete legal security from the very start. Before signing your fertility clinic’s cryopreservation paperwork or starting an IVF cycle in Ohio, connect with an experienced family-building attorney who understands the nuances of Ohio ART law.
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