What Happens to Divorcing Couple’s Frozen Embryos May Turn on Fertility Clinic’s Waiting Room Consent Form

Husband and Wife get engaged. Their wedding day approaches.

Ten days earlier, Wife’s physician informs her that she has cancer and will require treatments that will likely leave her sterile.

Husband and Wife decide to harvest some of Wife’s eggs, fertilized with Husband’s sperm, and freeze them for later use.

At the clinic, Husband and Wife each sign a clinic form stating that in the event of their divorce, any still-unused embryos would be destroyed.

Before any of Husband’s and Wife’s five embryos are used, Husband decides he wants to divorce Wife.

Wife, who has no children, seeks the right to use the embryos … and asserts that she would not seek any child support or co-parenting support from Husband if she does in fact use any of the embryos.

Nonetheless, Husband objects to Wife using the embryos and raising his genetic offspring, even if nothing is required of him.

The clinic joins Husband in asserting that the clinic form is an enforceable contract that should decide the case.

Wife, a medical doctor by training, characterizes it as a mere medical consent form for the clinic’s benefit.

Certainly, it seems like a reach to seriously contend that the clinic form was a contract between Husband and Wife.

And neither acted as though they believed it was a binding contract as between them. They didn’t pore carefully over it and neither had an attorney review it.

It sounds as though, at most, Husband may be what lawyers sometimes refer to as a third party beneficiary of a contract between the clinic and Wife … and Husband faces some real challenges to making that stick as well.

Wife hangs her hat on a more fundamental foundation. She argues that reproduction is a constitutional right and that her medical status gives her a greater interest in the embryos than Husband.

Beyond the personal significance to this couple, their case could steer the course of the law governing stored embryos in California divorce.

Read more in this San Francisco Recorder article: Fate of Frozen Embryos at Center of Divorce Trial .