“It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the Embryos in this case represent, must be determined in a court by reference to cold legal principles.” Findley v. Lee, No. FDI-13-780539, 4 (Cal. Tentative Ruling Filed Nov. 18, 2015).
On November 18, 2015, the Superior Court of California issued a Tentative Decision and Proposed Statement of Decision holding that five embryos that were created and cryopreserved by a husband and wife, now divorced, must be destroyed in accordance with the agreement signed by the parties prior to beginning IVF. According to the Court, the agreement contained, among others, a provision determining in advance the agreed-upon disposition of any remaining embryos in the event of divorce. For this provision, both spouses initialed “thaw and discard.” This “contractual approach” has been adopted by several jurisdictions that have had occasion to determine disposition of embryos in divorce. In this analysis, courts will enforce an agreement signed by the parties prior to IVF as evidence of their intentions at the outset of the process.
Courts in some states have decided such cases using different approaches. The Constitutional rights approach (or balancing approach) looks at the interests of the parties, evaluating and balancing their respective rights, which seems to result in a comparison of the right to procreate and the right to avoid procreation. This paradigm, in practice, has led courts to conclude that the right to avoid procreation typically prevails. The contemporaneous mutual consent approach, on the other hand, attempts to reconcile the contractual approach with the current wishes of the parties by holding that pre-IVF agreements are valid and enforceable unless and until one of the parties changes his or her mind. While this approach appears to recognize contracts, in practice a contract is disregarded where there is disagreement, and the embryos remain frozen until a mutual decision can be reached.