Recent cases show that even when intended parents have signed an agreement stating what will become of stored frozen embryos in the case of divorce, that doesn’t necessarily stop the fighting over custody of frozen embryos. Litigants are arguing that the frozen embryos are human organisms that should be protected – and pro-life organizations are trying to help them make their cases.
By Evie Jeang, Family Lawyer
One topic of discussion that has recently become front-page news in the United States is what couples/intended parents should do with their frozen embryos in case of a divorce. During the beginning of every Assisted Reproductive Technology (ART) journey, all intended parents have to sign a consent and agreement form stating what their fertility clinic should do with the stored frozen embryos in the case of separation.
According to the American Bar Organization (ABA), the state of California saw its first case back on November 18, 2015, in Findley v. Lee. In the post, the ABA states that “Judge Anne-Christine Massullo of the San Francisco Superior Court ruled that a woman could not use frozen embryos after she divorced her ex-husband.” The judge agrees that the consent and agreement form that the intended parents signed remained an enforceable contract under the California laws. The article continues to advocate that Judge Massullo’s ruling remains consistent and in line with other “post-divorce embryo custody cases” in New York, New Jersey, and Tennessee.
Fighting Over Custody of Frozen Embryos
The International Fertility Law Group commented on this precedent-setting case as well back in November 2015. They wrote that this ruling was “the first of its kind in a California court” which had serious implications for the ART industry moving forward. As more couples have turned to in vitro fertilization (IVF) for their fertility needs, the United States has seen exponential growth in cases like Findley v. Lee.
In 2018, now-divorced Mandy and Drake Rooks battle it out before the Colorado Supreme Court over the custody of their frozen embryos. The Rooks were married for over a decade and used IVF to have their three children. They decided to divorce in 2014 and had six viable embryos at the time stored in a Denver clinic. Mandy asserted that she wanted her embryos preserved, “hoping for a large family and believing the embryos were her only chance at a future pregnancy.” However, Drake insisted that he did not want any more children. His attorney states that his client “feels that he should not be forced to have other children by her getting these pre-embryos and implanting them.” The Colorado Supreme Court ruled in Drake’s favor. Although in other cases, the courts have ruled in favor of the wife based on the argument that these embryos were these women’s last chance at having a family.
Fighting Over Custody of Frozen Embryos: Bilbao v. Goodwin
This past April, the Connecticut Supreme Court was presented with another case debating “whether a divorced woman could discard one against her ex-husband’s wishes.” This case involves Jessica Bilbao and Timothy Goodwin, who are a divorced couple who had their daughter through IVF. Before starting IVF, the two had signed a contract stating that in the event they separated, their remaining embryos would be discarded. Ms. Bilbao still wants their last embryo discarded; however, Mr. Goodwin believes it should be saved and adopted by another couple. This case has gathered much media attention due to the oral arguments made by both sides.
During oral arguments, Bilbao’s attorney, Scott Garosshen, told the judges that both parties “voluntarily, willingly and without duress” entered into this agreement and they should “honor the choices they made”. However, Goodwin’s attorney, Joseph Secola, repeatedly told the justices that the embryo “is a human organism who should be protected… We err on the side of life or death – that’s the issue here.” Garosshen refuted this statement, arguing that, “There is an inadequate factual record to be making any kind of determination about when a cellular organism becomes a legal person.”
Bilbao v. Goodwin has attracted the attention of several pro-life organizations, who – perhaps galvanized by recent anti-abortion legislation in several states – wrote “friend of the court” briefs for Goodwin.
According to an article written by the National Catholic Register, this case has now delved into the realms of abortion law. Secola states that “the law already had many unresolved inconsistencies where unborn children were treated as legal persons in one case, such as recognizing unborn children as potential heirs to an estate, and not others. Recognizing the embryo’s best interests in this case,” he added, “should have no bearing on Roe v. Wade and abortion rights.” This case is still currently pending at the Supreme Court level due to the intricacies and new arguments that have been presented. The ruling that is to come from this case will yet again make a national impact on the ART industry here in the United States.
Fighting Over Custody of Frozen Embryos is not Restricted to Married/Divorced Couples
Contrary to popular belief, not every embryo custody case involves a married couple. Often all you need are two people who’ve decided to be intended parents by using their own sperm and eggs. One example would be the high-profile case of Modern Family star Sofia Vergara and her ex-fiancé Nick Loeb. These two have been repeatedly going to court for five years fighting over the custody of their frozen embryos. According to multiple news articles, Vergara refuses to give Loeb consent to use their embryos.
There are multiple gray and shady areas when it comes to the laws pertaining to and surrounding the Assisted Reproductive Technology industry. It’s been difficult for the United States court system to make a ruling on how we’re supposed to balance one individual’s right to not want to be a parent, and someone else’s right who does. Despite recent challenges to agreements made while a couple was hoping to bring a new life into the world, it’s important that fertility clinics make intended parents sign a consent and agreement form prior to the start of any fertility journey. Often consulting an attorney, one for each party, proves to be beneficial in the long run for couples.
Meanwhile, we will watch and wait to see what happens with cases such as Bilbao v. Goodwin, where divorced couples are fighting over custody of frozen embryos.
International Fertility Law Group. www.iflg.net/frozen-embryos-divorce
American Bar Organization. www.americanbar.org
ABC News. www.abcnews.go.com
Latin Times. www.latintimes.com
National Catholic Register. www.ncregister.com
Evie Jeang is the founder and CEO of Ideal Legal Group, a boutique family law firm, and Surrogacy Concierge, a full-service agency for the surrogacy and fertility needs of growing families. An attorney licensed to practice law in California and New York, she has over 15 years of experience in the areas of international family law and surrogacy law. www.surrogacyconcierges.com.
Reproductive Rights Technology
If either spouse was not a biological parent, should the non-biological parent still be financially liable for not only support but also the cost of assisted reproduction if the couple has parted company?