Prenuptial agreements were the province of the rich, the famous, and perhaps those who hoped that they would be rich and/or famous. Movie stars, business leaders, and descendants of families that amassed huge wealth over generations were the consumers of this legal service. Prenuptial agreements were considered rare and for many were so unromantic as to be the source of offense. Times have changed, and that means we’re thinking about things we never had to before—such as embryonic custody.
New Role of Prenuptial Agreements
Prenuptial Agreements: A Growing Trend Among “Ordinary” People
While many of these agreements are indeed prepared for the traditional clientele, a new group of people have found them to be extremely useful and far from offensive. The prospect of tremendous success seems to be more within the grasp of “ordinary” people than ever before. It seems as though everyday technological developments are minting crowds of millionaires and billionaires. New forms of valuable property are being created with each new sunrise.
Twenty years ago, no one would have thought that a dog named “Toast” could earn a small fortune with photographs that could be zoomed around the world in less time than it takes to blink an eye. Similarly, people rarely gave thought to the ownership of their genetic material that may be stored in a freezer for decades. But as the world has changed, so has the usefulness and the applicability of a prenuptial agreement.
The Benefits of a Prenup
In the United States (unlike many foreign countries), prenuptial agreements entered into by parties who have had access to competent legal advice and who have not been the victims of fraud or duress in connection with the agreement are very likely to be strictly enforced. These agreements provide significant protection to the parties by giving them security in knowing that, should the marriage come to an end, the marital partnership will be unwound in accordance with their wishes as were expressed during a time when they were, at least theoretically, thinking clearly and not influenced by fury and anger that characterizes many relationships that come to an end.
In addition, the discussions and negotiations, which are usually supervised and directed by seasoned professionals, can provide a couple with valuable experience and training in handling each other when it comes to addressing significant and important matters that will undoubtedly come their way as they grow together.
The Role of a Prenup in Determining Embryonic Custody
This ability to order your affairs during a period when you are free from extraordinary emotional influence makes a prenuptial agreement a particularly good vehicle for determining the disposition of a preserved embryo that was created prior to the onset of either marital difficulties and before death. In the absence of a prenuptial agreement, a couple is confronted in a hospital or other medical facility with an imposing array of forms that concern not only the medical risks of whatever process they are going to engage, but also buried within the document there are provisions that address the disposition of the embryos upon the occurrence of certain events. These agreements are drafted by counsel for the physicians and/or counsel for the storage facilities. These agreements are not drafted by counsel for the parents of the soon-to-be created embryo.
As a result, the agreements focus more on shielding the professionals from liability than on the needs of the parents. By the time the people are confronting these documents, they are most likely under enormous pressure to have the procedure performed as quickly as possible. Impending medical treatments or other events that might have negative effects on a couple’s fertility certainly affect that couple’s ability to exercise sound judgment and see the future with any clarity. This is not the best atmosphere to make the determinations that they are being asked to make. It would have been preferable to have addressed these concerns in the relative calm that would exist months before a wedding.
Concerns about embryonic custody, and the ultimate use and disposition of a frozen embryo, is but one of the many “new” issues that can be and should be addressable in a prenuptial agreement. Additional concerns that may be covered in these agreements are limited mainly by one’s imagination.