Legal Complications of Frozen Embryos During Divorce

Flicker, Kerin, Kruger & Bissada LLP

Fertility struggles are more common than many people realize. According to the National Institute of Child Health and Human Development (NICHHD), 9% of men and 11% of women trying to conceive have experienced fertility problems. As the average age of marriage continues to rise, it is becoming more likely that couples will use assisted reproductive techniques (ARTs) to help them conceive. 

Unfortunately, ARTs are not without their complications. For example, in vitro fertilization (IVF) can generate multiple fertilized embryos per attempt. Couples may choose to freeze the extra embryos in case they want more children in the future. However, if they later decide to divorce, these frozen materials can complicate the divorce process. Couples considering reproduction assistance should understand why embryos can be a point of contention during divorce, so they understand the potential legal complication. 

Why Are Embryos a Source of Dispute in Divorce?

An embryo is formed when two people’s genetic materials are combined. Couples undergoing IVF without a donated sample will contribute equally to the resulting embryos. This is the root of many disputes since both parties believe they have the right to dictate the handling of their genetic material.  

California law considers frozen embryos property rather than children, so embryos are not subject to California custody laws. The state requires all couples seeking ART to sign a consent and agreement contract that clearly explains how they want their genetic material to be handled in the case of separation, divorce, or death, among other terms. In this contract, couples may choose from options such as the following:

  • Granting one parent the right to keep them for future use
  • Having them destroyed
  • Keeping them frozen indefinitely until both parents agree or pass away
  • Donating the materials to another couple or a medical facility for research

Regardless of the option spouses select, their decision is legally binding in California unless both parties consent to another course of action. This can be problematic since the couple’s preference in the beginning of ART may differ from their wishes when they are later considering a divorce.

Reasons Couples Dispute Ownership of Embryos 

Despite the requirement to have contracts in place before attempting ART treatment, disputes still arise. Typically, these issues occur because one party changed their mind after signing the agreement. Common reasons for this include:

  • Ongoing fertility issues wherein the embryos are now the only opportunity for one party to have biological children.
  • Custody and child support because both biological parents are legally obligated to support a child in California, regardless of how it was conceived.
  • Moral concerns, where one person has come to believe that the embryo should count as a child rather than property as currently defined under California law.

Any of these issues may cause a spouse to change their mind on the treatment of the embryos. 

California Case Law on Frozen Embryos and Divorce

Although legislation regarding embryos during divorce has come a long way over the past decade, currently there are no federal laws or precedents that dictate what should occur in these disputes. In the absence of federal guidance, each state’s treatment of these cases is distinct.

California treats embryo disputes as disagreements under contract and property law. Two cases have so far set the state’s precedent for future claims. The first embryo dispute heard in California courts was the 2015 Superior Court of California, San Francisco County case Findley v. Lee. The wife had signed a contract agreeing to destroy the embryos but later argued that she believed this was more of a standard form and she could change her mind. She wanted to be able to use the embryos after divorce, rather than destroy them. The Court ruled that the embryos must be destroyed per the original agreement, despite the Judge mentioning in her ruling that she found such a decision distasteful.

In the 2020 ruling in an unpublished case Vergara v. Loeb, this contractual approach was reaffirmed. However, it is important to note that this case cannot be relied upon in Court as precedent since it is an unpublished opinion. The court ruled that the man could not bring the embryos to term through a surrogate without the woman’s written consent, as was required by the original contract. 

Both of these cases focus on preventing one party from violating a contract that requires the embryos be destroyed or left frozen. Currently, California lacks case law addressing an agreement that states the embryos will be granted to one party or donated to another couple if one spouse requests they are destroyed. Other states have issued contradictory rulings on similar matters. Family law disputes involving embryos and assisted reproductive techniques remain rare, but they do occur. Anyone considering ART or with an embryo already stored by a fertility clinic should seek expert legal counsel. The skilled divorce attorneys at Flicker, Kerin, Kruger & Bissada LLP are available to counsel and represent spouses during complex property division matters during divorce such as the disposition of embryos.

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