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How are fertilized embryos treated in a divorce?

On Behalf of | Jan 30, 2024 | Egg & Sperm Donation |

When a married couple has utilized assisted reproductive technology to conceive and finds themselves facing divorce, the fate of leftover fertilized embryos stored in a fertility clinic becomes a complex legal and ethical dilemma. In the realm of California divorce law, these embryos raise questions about ownership, usage rights and ethical considerations.

California’s surrogacy laws

California stands as one of the most surrogacy-friendly states in the United States, permitting both gestational and traditional surrogacy. According to California Family Code, Section 7960, surrogacy agreements are deemed valid and enforceable under specific conditions. These conditions include the agreement being in writing, signed by all parties before embryo transfer and detailing intentions regarding custody, control, disposition of embryos, parental rights and compensation terms. California surrogacy laws recognize the intended parents as legal parents, obviating the need for an adoption process.

Fertilized embryos and divorce

While California surrogacy laws provide clarity on surrogacy arrangements, they do not explicitly address the fate of fertilized embryos in the event of a divorce. This evolving legal area lacks a uniform approach among courts, leading to various interpretations and outcomes.


In broad strokes, courts may view fertilized embryos in a divorce in one of three ways. Some courts may consider embryos as marital property subject to division or disposal per the parties’ agreement or court discretion. This perspective may overlook the emotional and moral complexities associated with deciding the fate of potential life.


Alternatively, certain courts may treat fertilized embryos as children, asserting their right to be born and have relationships with both parents. This approach may not sufficiently consider the autonomy and privacy of parties not inclined to procreate or parent against their will.

Contract law

A contractual view may be adopted by some courts, treating fertilized embryos as subjects of enforceable contracts based on the parties’ original intentions. While this approach respects choices and expectations, it may pose challenges if circumstances or preferences change over time.

Case law

In California, no definitive precedent exists on how courts will handle fertilized embryos in a divorce. However, cases like In re Marriage of Findley (2013), have provided some guidance. In this influential case, an appellate court upheld a decision granting sole control over frozen embryos to a wife seeking to use them for more children, considering factors like prior informed consent and the wife’s diminished chance of conceiving naturally. A similar holding was made in the 2020 Sofia Vergara case.


Fertilized embryos are not merely biological entities but potential life sources that demand careful consideration and protection. The evolving legal landscape surrounding their fate in a divorce necessitates thoughtful resolution, recognizing the profound ethical and emotional dimensions involved in these decisions.