A California judge ruled on divorced couple’s frozen embryo dispute. There is currently no legislation in California governing spousal rights in the disposition of frozen embryos. However, several states have ruled in post-divorce embryo custody cases, with the majority finding in favor of the party not wanting the embryos gestated. A recent California case has sparked interest on the issue of the rights to frozen embryos after a divorce. The San Francisco Superior Court recently held that a written consent agreement signed by both parties providing for the disposition of the embryos in the event of a divorce is a binding contract and will be upheld.
Husband and Wife Signed Consent Forms for Five Frozen Embryos
A San Francisco couple learned shortly before their wedding that the wife had cancer. The couple then agreed to undergo in vitro fertilization that resulted in five frozen embryos. Before undergoing this procedure the couple signed a Consent and Agreement. One of the provisions in the agreement stipulated that in the event of a divorce, the embryos would be thawed and destroyed. After the husband filed for divorce, the wife requested that some or all of the embryos be transferred to her for her use. The husband denied his consent.
Wife’s Constitutional Right to Procreate
During the couple’s divorce proceedings, the wife argued that the contract was more like an advanced medical directive that could be changed at a later time. She also argued that the court should weigh her right to procreate against any interest her ex-husband had in avoiding use of his biological material for parenthood. The husband argued that the agreement signed by the couple is binding and should be enforced.
Frozen Embryo Dispute – CA Court Held the Embryos Must Be Destroyed
The court reasoned in part, that while the wife does have a right to procreate in most other circumstances, with regard to her now ex-husband she does not. The court analyzed the intent of both parties at the time the agreement was made and found that the language was clear. The agreement stipulated that in the event of the couple’s separation and divorce, the embryos were to be thawed and discarded.
With no federal legislation on the issue, guidance on thawing and utilizing embryos varies from state to state. The California legislature has enacted a statute that requires fertility health providers to provide a form to both partners prior to undergoing any treatments that may result in the production of embryos for preservation. The form sets forth written directives for disposing of the embryos and would require any decisions regarding the embryos to be joint decisions.
Couples are advised to have their intentions put in writing before they undergo any procedures resulting in a frozen embryo. If you are considering filing for divorce in California and you and your spouse have an agreement in writing regarding the disposition of your frozen embryos, you should contact an attorney immediately. Even if you are not divorced but live in Santa Rosa, Petaluma, Ukiah, Lakeport or surrounding communities, have questions and want an agreement drafted it is best to seek legal help. An attorney will be able to review the facts of your case and provide you with advice to help guide you through process.