While California has clear laws and other general guidelines regarding child custody and parental responsibilities, there are far fewer ones concerning offspring that aren't born yet. Should they divorce, couples with frozen embryos in storage may have to deal with complex and uncertain legal issues regarding what to do with them.
Under current law, the embryos are considered personal property. Unlike actual born children, they are not entitled to full legal protections or custody agreements. This does mean, however, that embryos are treated more like property and will be owned by both spouses. The law is also clear that sperm donors do not retain any rights to the embryos they fertilize. Sometimes, IVF clinics have clients sign their own legal agreements and documents related to the ownership of embryos, but the law is not clear about how legally enforceable these agreements would be in court.
The remainder of the law is largely unknown when it comes to frozen embryos. As of early 2017, little to no new legislation or case law was available to guide parents or their lawyers in how frozen embryos should be handled in divorces. Due to this lack of information, couples should keep in mind general guidelines about what to expect should they go to court regarding the fate of their embryos. One of the most important is that the court is reluctant to force parenthood onto anyone.
A divorce attorney may be able to help people navigate the complex legal issues involved with deciding what to do with their frozen embryos by providing valuable insight and coming up with fair resolutions. One of the best solutions may likely be avoiding a legal argument about embryos altogether. Since they are considered to be personal property, the fate of the embryos could be decided through legal documentation before a divorce ever occurs. If this option is no longer possible, then an attorney may be able to advise a client on how current law will impact his or her ownership of the embryos and the costs involved.