CALIFORNIA ISSUES RULING ON FROZEN IVF EMBRYOS UPON DIVORCE

Pham v. Superior Court of Orange County, No. G065471 (California Court of Appeal, Fourth District, Division 3, December 16, 2025),

In a case of first impression in California, the appellate court addressed the issue of disposition of IVF embryos upon divorce, upholding the trial court’s ruling enforcing an IVF agreement and awarding the frozen embryos to the wife.

FACTS

During the marriage, a couple pursued IVF and signed an agreement with the IVF provider including a section entitled “ADVERSE EVENT: LEGAL SEPARATION OR DIVORCE,” which listed four options for remaining frozen embryos: (1) “[m]ade available to the partner if he/she wishes”; (2) “[d]onated to another person or couple (specify name)”; (3) “[t]hawed and discarded”; and (4) “[d]onated for research.” The box next to the first option was checked and both Husband and Wife initialed that option and signed the agreement.

Later in the marriage, Husband filed for divorce and filed a motion to discard the couple’s two frozen embryos held by the IVF provider. Wife filed for an order seeking immediate rights to the embryos based on the couple’s IVF agreement with the provider. The trial court enforced the IVF agreement and awarded the embryos to Wife.

OTHER JURISDICTIONS’ APPROACHES TO DISPOSITION OF FROZEN EMBRYOS UPON DIVORCE

The court considered three approaches other jurisdictions have applied to this issue.

The first is a contractual approach where the court looks to whether there is an enforceable agreement between the parties for the disposition of the embryos upon divorce. If there is such an agreement, then the court enforces the agreement. (See Bilbao v. Goodwin (Conn. 2019) 217 A.3d 977, 984). Advocates of this approach argue that this allows the couple, rather than the state or the courts, to make this personal life choice.

The second approach is the balancing approach where the courts weigh the parties’ respective interests. (See In re Marriage of Rooks (Colo. 2018) 429 P.3d 579, 581, 593). The Colorado Supreme Court has articulated several factors to consider in weighing the parties’ relative interests, including “the intended use of the party seeking to preserve the disputed pre-embryos” and the ability “of the party seeking to implant the disputed pre-embryos to have biological children through other means.” (Rooks, at 593). Most courts that have faced this issue have only employed the balancing approach when there is not an enforceable agreement between the parties regarding the embryos.

The third approach is the contemporaneous mutual consent approach where both parties must agree, at the time of the disposition of the embryos, to what will be done with them, and if they cannot agree then the status quo is maintained. (In re Marriage of Witten (Iowa 2003) 672 N.W.2d 768, 783.)

The Husband in Pham argued that if his Wife disagreed with discarding the embryos, then the contemporaneous mutual consent approach should apply when a couple is divorcing, and one party no longer consents to becoming a parent. He also argued that California’s constitutional privacy right precluded the enforcement of the contract “[b]ecause the right not to procreate is a fundamental right.” The appellate court dismissed the privacy right argument because Husband had not raised the issue in the trial court.

CALIFORNIA ADOPTS CONTRACTUAL APPROACH

The California appellate court adopted the contractual approach, because it “’minimize[s] misunderstandings and maximize[s] procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.’” (Quoting Rooks, supra, 429 P.3d at 592.) The court also noted the importance of making this important decision in advance, rather than at the moment of disposition.

The court reasoned the contractual approach is consistent with California law requiring fertility treatment providers to give “a form to the male and female partner, or the individual without a partner, as applicable that sets forth advanced written directives regarding the disposition of embryos,” including certain choices in the event of separation or divorce. (Cal. Health & Safety Code §125315(b)(3)(A-B).)

TAKEAWAYS

Couples enter into IVF agreements long before they are considering divorce, yet they must give serious consideration to their decision on disposition in the event of divorce. It is also crucial to explicitly address the disposition of frozen embryos in marital settlement agreements and address consequent child support and custody.

This article provides general information about California divorce and is not intended as legal advice. Every family's circumstances are different. Please consult a qualified California family law attorney regarding your individual situation.