Embryos and Divorce

A routine question that family law attorneys are now asking: “Is there any genetic material that we need to talk about.”

Several major clinics have said that the use of I.V.F. and other fertility treatments had risen during the coronavirus pandemic , with more people reassessing what matters to them. If you create an embryo together, your genetic material is stuck together.

There are several court cases and statutes in California that concern the parentage and support issues involved with embryos. Several of the cases have involved adopted embryos which have led to birth and others involve the “division” of frozen embryonic assets.

Divorce cases involve considering whether husband and wife are the both the legal parents of the child born via embryo adoption. And is that what was intended? Conduct, intentions (whether expressed, implied or contractually committed to) are considered by the courts. In California, a parent is not allowed to unilaterally walk away from a child, disregarding the child’s constitutional rights to care and support.

Even if the parties are expecting a child by way of surrogate, the CA court of appeals in re Marriage of Buzzanca, 61 Cal. App. 4th (1998) found that even if not biologically related to the child the parents were still the legal parents. This is based on the fact that they initiated their role as the intended parents in the child’s conception and birth.

With embryo adoption, the “Intended Parents Service Agreement” is typically signed and becomes the guidepost for the adoption. The law has opined that babies conceived through this method should be treated no differently than babies conceived “the old-fashioned way.” This holds true for either oral or written surrogacy, in that the oral agreement envisions that fertilization, implantation, and pregnancy would go forward. In Kristine M. v. David P., 135 Cal.App.4th 783, 790-91 (2006), the court held that “Within the context of artificial reproductive techniques, intentions that are voluntarily chosen, deliberate, express, and bargained-for ought presumptively to determine legal parenthood.”

These type of actions and considerations are considered salient by family court, especially when the terms of he “Intended Parents Service Agreement” put both parties on notice of the expectations placed upon them as parents no matter what the outcome may be. The law protects the constitutional rights of a child.

The California Legislature, through Family Code section 7570(a)(1) finds and declares the following;

There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which in turn, provides children with equal rights and access to benefits, including, but not limited to social security, health insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.

In the end, the court considers many factors including the parents’ conduct before and after signing the contract. The balance of evidence, documentary and testimonial, inferences based on words and conduct, or lack thereof, and public policy are all essential to a court’s findings regarding parentage and child support if requested.

When the married couple has frozen embryos which were not implanted and then decide to divorce, there is another concern for family court. The question arises when the intended parents are unable to agree on a disposition at the end of their relationship. While many states have already tackled this issue since it first cropped up in Tennessee family court in 1992, California was late to the party.  

Modern medicine allows couples to separately freeze their respective eggs or sperm. And while the individually frozen reproductive cells may easily be awarded to the respective parent donor, there is the potential for disagreement over shared embryos in the event of divorce.

Three trends make frozen embryo custody a growing issue are later-in-life marriages, improving embryo-storing technology, and a rise in silver divorce (divorce over 50).  With a dearth of cases in California concerning the embryos, there is not a lot of solid legal precedence as of 2023.

In California, courts treat frozen embryos as property. California applies contract, not child custody laws to frozen embryo disputes. Fertility treatment providers in California must have patients complete an advanced directive for the disposition of embryos, including what should happen after death or divorce. Courts enforce the directive as a legally binding contract. (Cal. Health & Safety 125315 (2024).) When courts treat frozen embryos like prerty, the owners of the embryos have full authority to decide what happens to them.

Embryo disposition choices include:

·      Giving control to one partner if the other partner dies or the couple divorces

·      Discarding

·      Donating for research

·      Donating for use by another individual or couple ( embryo adoption)

·      Storing indefinitely (at an annual cost of $350 to $1,000 per year)

One case, involving actress Sophia Vergara in Vergara v. Loeb, ruled in favor of Vergara in that Loeb did not have the right to use of the embryos because the original contract stated that both must consent for either of them to use the embryos. Vergara had spoken publicly about having frozen her eggs and about her desire to have more children. She revealed that they had planned to use a surrogate. Vergara is a thyroid cancer survivor and because she was exposed to radiation she saw a need to freeze embryos.

What happens to the embryos if neither party consents to the other’s use?

Embryo custody contracts required by the invitro fertilization clinics typically provide agreements to ensure there is some protection in case of future disputes. Again, the “Intended Parents Service Agreement” or the “Cryopreservation Consent Form”  is deferred to when trying to properly settle concerns of disposition of frozen embryos when there is a divorce pending. Courts generally view embryo cases as a matter of legal contract where previous agreements existed.

The consent form allows them to check a box or initial next to a desired outcome. Both may agree to discard if there is a divorce or to donate to science if the embryos are not viable. However, there are instances where the parties fail to make an election in event of divorce either because they could not find agreement or just neglected to check the box.

These cases are highly emotional when there is disagreement over shared embryos due to divorce.  Sometimes a party changes their mind even if there is a shared agreement.

A case involving a San Francisco woman, Dr. Mimi Lee. The court ruled that the original agreement signed by Lee and her then husband, Findley, that the original agreement trumps the woman’s desire to now keep her embryos. The court ruled that Lee must abide by her original agreement to destroy the five frozen embryos. Lee had argued that the embryos represented her last chance to have children after cancer treatments left her infertile.

In this case, Finley’s lawyer alleged that Lee was using the embryos as blackmail in their divorce proceedings. The court ruled that although Lee might have the right to procreate in other circumstances, she does not have the right to procreate with Findley.

Again, paternity rights were acknowledged as the intent to procreate was made by both parents.

In a related case, but in another jurisdiction, Washington state, a couple had a successful birth from donor eggs and husband’s sperm, but had additional eggs frozen with plans to implant at a later time. Now divorcing, the husband wanted to place children born from the embryos for adoption while the wife appealed and wanted to raise any potential children. The court awarded custody of the frozen embryos to the husband.

Couple should discuss the legal implications of their decision with an experienced lawyer before agreeing to any contract involving frozen embryos or implantation of embryos. The legal and ethical challenges can be significant and involve a complexity of issues including child custody and child support.

An agreement from the fertility treatment providers stipulates in writing regarding the disposition of any embryo-viable, implanted, or frozen-documents both parties’ intentions. This is a state requirement.  If agreement cannot be reached, the clinic may not proceed with treatment.  These agreements are enforceable in California Family Court.

The International Fertility Law Group in Los Angeles has seen an increase in the number of people asking for legal advice on frozen embryos. Giving a partner the sole rights to embryos could have emotional and financial consequences.

Across the United States courts have generally ruled in favor of the person who does not want to develop the embryo. There are exceptions, such as in Arizona where the custody of disputed embryos goes to the party who wants to bring them to term.

But often, the decision is difficult. One party may not be able to have biological children for one reason or another, while the other may have contributed one-half the genetic material with a donor’s other half. Child custody in a divorce is an issue that is litigated often and decided according to state law.

Courts in California, Illinois, New York, and Tennessee have all adopted the contractual approach in their rulings on the issue of assisted reproductive technology agreements.

A tangential subject is the issue of frozen eggs and fertility treatments in general. The cost for invitro fertilization and any fertility treatment has become another point of contention in CA divorce cases. Often party who is freezing wants to get compensated for expending the money for fertility treatment to freeze eggs. Since eggs are typically agreed upon to be awarded to the spousal woman donor, the other party often seeks reimbursement for the fertility treatment costs. This could be treated as a reimbursement claim since the “property” is eggs and will be awarded back to the donor spouse. The valuation of the eggs is determined largely by the parties.

Another issue that arises financially, is the fact that employers frequently offer lifetime benefits up to $35-50K for fertility treatment. Because these are only offered as a one-time treatment plan, if one party wants to undergo treatment on the other spouse’s benefits, that stirs up friction as it will be a foregone “asset” in the form of healthcare premiums no longer available. It is particularly sore subject if the benefit has been used and now the participant who had the benefit no longer has it for future use and may seek reimbursement to “be made whole.”

In the end, in California, decision-making authority is in the hands of the couple at the time of entering into enforceable embryo disposition agreements BEFORE fertility treatment. Couples would be wise to carefully consider these decisions no matter what the current status of their relationship may be.

This article does NOT constitute legal advice and is for general information purposes ONLY. Prior to making any decisions, seek legal counsel from a licensed attorney.