California Divorce Law – Are Frozen Embryos Property or Children?

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human-embryo-editingAn interesting case popped up recently in the San Francisco Bay Area in northern California.  In this case, Dr. Mimi Lee and Stephen Findley created several embryos when they learned that Lee had cancer. Now the parties are divorcing.  Lee cannot have children and wants the embryos to implant into a surrogate and Findley wants the embryos destroyed.  Findley argues that the couple signed consent agreements at the clinic which stated that if the couple divorced, the embryos would be destroyed.  It appears as though this consent was part of a “form” contract at the clinic.  Lee argues that because she can’t have children, the embryos are her only chance to pursue her fundamental right to have children.

Other states have had this issue arise, including at least Washington, Illinois, and Massachusetts.  In most cases, the trial court ruled that if one party objects to a frozen embryo being released to the other party, the court will not allow the release.  The rationale is that you cannot force a person to become a parent against his or her wishes, and the courts will honor the contracts signed by the parties which calls for the destruction of the embryos in the case of lack of mutual consent or divorce.

The legal question that arises is whether the embryos are children, property, or something different.  It appears that the arguments made in these cases assume that embryos are children.  But are unborn fetus’ children?  To answer this question, one could cite the Roe v. Wade United States Supreme Court decision when it held that unborn fetuses are not persons under the U.S. Constitution.  As a result, couldn’t Lee argue here that the frozen embryos are simply property owned by the parties, which should be divided as community property?

Of course, the practical reality is that a frozen embryo should be treated as neither property nor a child because the issue if far more complex.  To characterize a frozen embryo as property would mean that a child could be born which would be the legal child of both the man and woman, subjecting both parents to potentially unwanted fights over child custody and child support rights and obligations.  Parents cannot contract away their parental obligations as a matter of public policy.

Fortunately, this legal conundrum may be a short lived problem as scientists are now able to separately freeze female eggs and male sperm.  Unfortunately, however, cases like Lee and Findley will arise for people that already utilized the service of freezing embryos and then later split up.

Local news agencies and many national news companies published a story regarding this case.  For example, click here for the CBS copy of this story.  CBS also ran a story with a similar circumstance involving Sofia Vergara.  She and her ex-fiancé froze embryos together during their relationship.  After their split, Nick Loeb wanted the embryos over Vergara’s objection.  Due to the contract between the parties and the clinic, which calls for the embryos not to be released unless and until both parties agree, the embryos will not be released.  No lawsuit is pending and apparently Loeb recently venting his frustrations publicly.  Here is the story.

A simple solution to this problem would be the enactment of a statute that governs this interesting legal issue.  For example, absent mutual consent of the parties to bring a frozen embryo into the world through a surrogate, the parent not wishing to have the child is absolved of his or her obligation to financially support the child and is barred from seeking custodial rights in the future.  In essence, the non-consenting spouse is treated as an egg or sperm donor.

For more information about divorce, child custody or child support, or property division, contact our office today by email or call us at (949) 966-9155.