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California Community Property and Frozen Embryos – What Exactly Are Future Children?

October 5, 2016

This is part 1 of a 3 part series on assisted reproductive technology and divorce in California. Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional. Please click here to set up a consultation with experienced family law mediators Boileau Conflict Solutions

During a divorce couples have to come to terms with the task of dividing lives that were once entangled and property that was once shared. At the beginning of this process, nobody knows what kinds of emotional and practical obstacles will arise. But one overlooked issue that can have serious consequences is assisted reproduction

Even with a growing trend of couples making use of these evolving technologies, an interesting and somewhat startling fact is that “there are no federal regulations governing the disposition of frozen embryos created through assistive technology.” (Source: NYT) California is one of the states that makes a large contribution to the US’s supply of stored embryos, with an abundance of fertility clinics, so this ambiguity may hit couples who haven’t planned what to do with frozen embryos when they come to a decision about separating. At Boileau Conflict Situations we have experience mediating issues involving reproductive technology. We can intervene at an early stage to work out agreements that lessen ambiguity, or ease disputes that can arise later.

With Roe v Wade establishing that unborn fetuses are not persons under the US Constitution, a divorcing couple might be under the impression that they are somehow property instead, and that California community property law will find a way of fairly disposing of them so that both parties are accommodated. For a divorcing couple to have to consider whether their frozen embryos are property or children is an incredibly painful assessment to have to make, but unfortunately, it is an issue that needs to be confronted. With the current ambiguity, the outcomes of any future disputes over frozen embryos are far from clear.

A recent case that brought these issues to light was the case of Dr. Mimi Lee and Stephen Findley, a couple from the San Francisco Bay Area. Dr. Lee fought for the right to use the couples’ embryos to have children with a surrogate (in her mid-forties, it was her last chance to have biological children). This high profile case was widely anticipated to be a benchmark for how future cases are treated in California. Although the ruling wasn’t strictly precedential (the lower courts ruled), the courts ruled against Dr. Lee.

Despite Roe v.Wade’s dictates, in practice the court felt compelled to treat the frozen embryos as much more than a couple’s shared property. Its decision anticipated future issues such as child support that could have forced Stephen Findley to participate in parenting. This is an important case for couples using reproductive technologies, because the court’s decision opens up a whole range of considerations that need to be openly discussed by couples opting to freeze their embryos. To be continued…

Mediate First

At Boileau Conflict Solutions we use sophisticated techniques to help you mediate your dispute. We can help to craft agreements such as Prenuptial or Post-Nuptial agreements before conflict arises, or we can apply psychological and financial know-how to work through complex disputes about reproductive technology that may be emotionally charged. Please call us today to see how we can help.

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