Who gets the Embryo?

Who gets the Embryo?

Update: This post was written in May 2017. In August 2018 we added an updated opinion and new blog post

More and more couples turn to IVF as a form of assisted reproduction. As a result, an area of litigation involving who gets the embryos is growing. Excess embryos are created in the IVF process. Enthusiastic couples are asked to sign consent forms with the clinic providing the IVF, which are routinely signed without much thought. Most consent forms contain provisions regarding the disposition of the embryos in the event of separation or divorce. The forms may contain options for the embryos to be either be donated, destroyed, or the for one person to control the fate of the embryos upon separation. This provision should be given thoughtful consideration, as this is still a growing area of the law, and the laws haven’t quite caught up to issues currently before California courts.

In spite of the consent form, a court may not find it enforceable. This is especially true if one spouse wants to grow the embryo into a child and the other does not. Generally speaking, the party wishing to avoid procreation will prevail. However, there are some exceptions to this rule. One Pennsylvania case awarded embryos to a woman who was rendered infertile as a result of her cancer treatments. But that was a Pennsylvania court. The law is still unsettled in California. Recently, under similar circumstances, a San Francisco trial judge ordered the embryos destroyed in accordance with the parties’ IVF agreement. A trial judge cannot “make” law, only the appellate court can. No one appealed the San Fransisco trial judge’s decision, so we don’t know what the outcome would be if the same set of facts were raised before a different California trial court judge.

Sofia Vergara and Nick Loeb Embryo

The most famous case of frozen embryos could be between Sofia Vergara and Nick Loeb. The couple created embryos for the purpose of IVF, but broke up before the embryos would have been used. Loeb wants to grow the embryos into children, Vergara (now remarried) claims this is an excuse to “promote himself.” This case is still pending, so we don’t know the fate of the embryos other than they sure would be adorable if grown into children.

In summary, if you signed a consent form that prevents one party from using the embryos without the other’s consent, a court will most likely enforce it. If you signed an agreement that gives one parent permission to use the embryo’s without the other’s consent, it is unlikely a judge would find the contract enforceable unless one person potentially has no other means of having children.


Marissa Major and Hillary Warren of Warren Major LLC are Marin County family law attorneys, specializing in divorce, child custody and support, marital contracts and other family law issues. If you are looking for honest, expert legal advice, please contact our office for a consultation

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Update: This post was written in May 2017. In August 2018 we added an updated opinion and new blog post

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