The desire to have children in later years has increased the tendency of partners to freeze their embryos at a younger age to be utilized in later years. California is among the handful of the States which pioneered a legal framework for handling preservation of the embryos by allowing an agreement of the parties. California Health and Safety Code, Section 125315(b)3, provides the language and limitations for such agreements:
“(3) In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:
(A) Made available to the female partner.
(B) Made available to the male partner.
(C) Donation for research purposes.
(D) Thawed with no further action taken.
(E) Donation to another couple or individual.
(F) Other disposition that is clearly stated.”
But what if the Parties agree “before freezing” that upon divorce the embryos shall be thawed and discarded but “after divorce” one of the parties changes their mind and wants to keep the embryos for future use?
What if the agreement is in violation of Family Code, Section 1615(a)1) for not being entered voluntarily, and/or Section 1615(a)2) as unconscionable? Does Section 1615 even apply?
What is the impact of the Health and Safety Code and how can parties modify their agreement with an attorney’s advice if the IVF clinic allows modification?
The California Appellate Courts have yet to confront this new territory and Family Law Trial Judges and Practitioners must look to how other jurisdictions are dealing with this issue in their legislative or judicial forums.
Speaker: Hon. Anne-Christine Massullo, Supervising Judge of the Unified Family Court of San Francisco.
Moderator: Abbas Hadjian.