In a recent blog post, we reported on an issue of first impression before a state trial court in San Francisco. The controversy centered on a divorcing couple’s respective rights concerning the fate of their frozen embryos, created using reproductive technology. According to a news article, just last week the court ruled that the five fertilized embryos, frozen during the couple’s marriage, must be thawed and destroyed in accordance with a consent and agreement signed by the former spouses prior to their divorce.
This case, like many family law proceedings, involves emotional and personal issues. When ruling on issues that will affect a family’s life going forward, courts are required to follow established legal principles, rather than focus on each family member’s personal turmoil and struggles. While it may be difficult for a judge to separate emotional from practical considerations, courts must do so in order to follow the law. For this reason alone, if you are considering a separation or divorce, it is imperative that you understand your legal rights under your particular circumstances. An experienced family law attorney from the local San Diego area could guide you through the process while protecting your family’s rights.
Ultimately, the court’s decision rested on matters of contract law. Here, shortly after the couple got married, the wife found out that she had cancer. They chose to utilize reproductive technology (in-vitro fertilization) to create embryos for future implantation. As part of this process, the parties each signed a Consent & Agreement For Cryopreservation Disposition of Frozen Embryos (“Consent & Agreement”). This Consent & Agreement indicated that unused embryos were to be disposed of under certain circumstances, including divorce. The court pointed out that the parties expressly agreed that in the event of divorce, the embryos would be thawed and destroyed.
Once the husband told the wife he wanted a divorce, she expressed her desire to use one or more of the embryos in an attempt to create a viable pregnancy. The husband refused to give his consent. The wife sought to have the embryos transferred to her, but the husband refused. In reviewing the current state of the law, the court noted that there are no federal laws or regulations governing the disposition of frozen embryos created through this technology. The California Health and Safety Code, however, does govern such disposition and provides in pertinent part that fertility health care providers must give participating individuals a form that identifies written directives concerning the disposition of any frozen embryos upon separation or divorce.
According to the court, both parties initialed the provision in the form identifying “thaw and destroy” in the event of divorce. That document further provided that any future decisions about the disposal of these embryos must be a “joint decision.” Based on this language, the court concluded that the Consent & Agreement signed by the parties, prior to their divorce, controlled, and that their intent, as shown by the document, must be given conclusive effect. Essentially, the court was “unswayed by the turmoil, emotion, and accusations” in this case but instead gave effect to the parties’ intent at the time they entered in to the Agreement.
While this decision has the potential to affect reproductive technology cases brought within the state of California under similar circumstances, it is important to keep in mind that the court that issued the ruling is a lower state court. Clearly, family law issues are serious and often contain tough legal issues. An experienced family law attorney can sort through the confusion and identify your rights early on. For more than 20 years, Roy M. Doppelt has been representing clients in divorce matters in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a free consultation with a dedicated and experienced family lawyer, contact Doppelt and Forney, APLC through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).
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