July 2023 Family Law Corner - We Are Having an Embryo! Navigating Embryo Adoption in the Context of Divorce

by Ashley Chavez Sedaghat

Although biological ties are lacking in an embryo adoption, the court can find two intended parents to be the legal parents of a child by placing substantial and due weight on the conduct which initiated the conception and eventual birth of the child. A child has a constitutional right to care by their parents. Kristine M. v. David P., 135 Cal. App. 4th 783, 791 (2006). This is a right the family court does not take lightly. Children conceived without assistance, through in vitro fertilization, or by way of an embryo transfer and subsequent adoption are all entitled to care and support. In California, child support cannot be waived.

You, me, and baby makes three! To better understand how an embryo adoption is navigated in the context of divorce, first consider a hypothetical situation. Wife and Husband struggle with fertility during their marriage. They eventually conceive and suffer a miscarriage multiple times early on in each pregnancy. They attempt in vitro fertilization to conceive a biological child of their own without success. Given the price tag for in vitro fertilization in California, with a cost between $15,000 and $30,000 for each attempt (if not covered by an employer-provided insurance policy), it is not a method of conception they can afford to pursue time and time again.

Wife and Husband research the process of embryo adoption as an alternative method of conception. They conclude their best chance of success will be to use a non-biological embryo. They are careful in the embryo selection process. Wife takes the lead on researching embryos that would share each of their ethnic backgrounds. The couple decides together that they would love to have a daughter. Wife looks through the online donor database provided by the selected embryo donation agency, sharing options with Husband until they find their perfect match both in gender and preferred ethnicity. The excitement builds. Parents they will be!

Wife and Husband go to the embryo donation agency together to discuss the process, the cost, and the “Intended Parents Service Agreement” they both must sign. Husband takes the lead on reviewing the service agreement, as the more careful and diligent of the two in reviewing important contracts, and thus the first set of documents is signed. The soon-to-be parents have their respective questions answered about embryo adoption. A deposit is made from a joint credit card which is later paid off with joint funds. Their journey to parenthood continues.

Wife starts the pre-testing and medications required to prepare her for the embryo transfer. Husband helps with the administration of medication to Wife, including injections, and drives Wife to her medical appointments. Their marriage is far from perfect. There are bumps in the road, arguments, mentions of “divorce,” but also happy times. Their marriage is rocky, but they always find their way back to one another. The embryo adoption process continues to unfold. The second set of documents is signed by both prospective parents.

Implantation day is here! Husband drives Wife to her appointment and accompanies her inside the clinic to sign the final documents for the embryo transfer. Husband supportively stays in the room with Wife during the implantation procedure and takes her home afterward. Time will tell if the pregnancy is a success.

We are having a baby! Wife shares the wonderful news with Husband. Although their marriage is strained, the couple celebrates this momentous occasion with family and friends at a baby shower. Congratulatory remarks and hugs are shared. Photographs are snapped as the couple shares the good news of the impending birth of their daughter. Smiles all around.

The stress of the embryo adoption process, coupled with their general marital strife, cause the relationship to circle the drain and they are once again discussing their future. Will they divorce? Stay together? The couple eventually comes to terms with the decision to seek legal advice for a divorce. They meet with an attorney, intending to have an amicable divorce during the pregnancy. Quite the contrary occurs.

A few months after the baby is delivered, Husband files for divorce listing no minor children on his Petition for Dissolution of Marriage. Wife files her Response to the pending action and notably lists their baby girl as a child of the marriage. She pursues a formal request for child support as none is provided. Husband feels cornered and the legal fight begins. “She is your daughter, not mine!” he proclaims. The divorce case is then transformed into a court battle regarding parentage and child support.

Legal authority directly on point regarding embryo adoption in the context of divorce is lacking, but there is relevant authority for a court to consider when addressing these issues. There is a multi-component evaluation to be had. Are Husband and Wife both the legal parents of this child born via embryo adoption? Is that what was intended? A detailed factual analysis must be completed, and no cases are alike. Conduct, intentions—expressed, implied, and/or contractually committed to—must be considered. A parent is not allowed to unilaterally walk away from a child, disregarding the child’s constitutional rights to care and support. Or are they?

In In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (1998), a married couple agreed to have an embryo implanted into a surrogate who was genetically unrelated to either of them. After the surrogate became pregnant, the husband filed a Petition for Dissolution of Marriage and claimed there were no children of the marriage. The wife filed her Response to the Petition and asserted the parties were expecting a child by way of a surrogate contract. After the birth of the child, the trial court entered a judgment declaring the parties were not the legal parents. Upon an appeal by the wife, the court of appeal reversed the ruling and directed the trial court to enter a new judgment declaring both parents as the legal parents of the child. The appellate court found that although neither party was biologically related to the child, they were still the legal parents given their initiating role as the intended parents in the child’s conception and birth. Id. at 1411. The court of appeal noted that the same statute that makes a husband the lawful father of a child born because of his consent to artificial insemination (Family Code § 7613) applied to the “intended parents.” Id.

The intentions, and knowing intentions as set forth in an “Intended Parents Service Agreement,” are focal points in the analysis of embryo adoption. Why should a baby conceived through this method be treated differently than any other baby under the law? If parents plan to become pregnant and are successful in that venture, their baby is viewed no differently by the court as one conceived through the embryo adoption process or one conceived without medical assistance. If an unplanned pregnancy during marriage will bind spouses to the associated parental obligations, then a planned and intended embryo adoption have an even more solid foundation. After all, it is not often that spouses sign layers of contracts with one another before attempting to conceive without assistance. Overt actions are taken by partners to proceed down this alternate path of conception, with an affirmation of their intentions through document signings and the implantation procedure.

The Buzzanca court stated in dicta, “the establishment of fatherhood and the consequent duty to support when a husband consents to the artificial insemination of his wife is one of the well-established rules in family law.” 61 Cal. App. 4th at 1418. The appellate court further opined: “Even if the written surrogacy contract had not yet been signed at the time of conception and implantation, those occurrences were nonetheless the direct result of actions taken pursuant to an oral agreement which envisioned that the fertilization, implantation and ensuing pregnancy would go forward.” Id. at 1426. And further, “for all practical purposes [the father] caused [the child’s] conception every bit as much as if things had been done the old-fashioned way.” Id.

An “Intended Parents Agreement” will likely be viewed as binding against both parents as it was in Dunkin v. Boskey, 82 Cal.App. 4th 171, 178 (2000). In Dunkin, the parties had signed a written contract with a fertility center wherein both acknowledged “[their] obligation to care for and support and educate and otherwise treat and consider any child born as the result of such artificial insemination in all respects as though it were [their] natural child.” The court of appeal held that the agreement made by the parties at the fertility center was binding against them, as the agreement served the compelling public policies of family law to legitimize a child, provide for their support, foster the best interests of the child, and promote familial responsibility. Id. at 189.

In our hypothetical scenario, the Husband’s conduct along with the Wife’s set forth a chain of events resulting in Wife’s pregnancy. “But for” the conduct of both parents, there would not have been a pregnancy or the resulting child they attempted for so many years to have.

In the case of Johnson v. Calvert, 5 Cal. 4th 84 (1993), a childless married couple and another woman entered into a contract providing that an embryo created by the couple would be implanted in the other woman’s uterus, that the child born would be the couple’s child, and that the surrogate mother would relinquish all parental rights to the child following the child’s birth. While pregnant, the surrogate filed an action to be declared the mother of the child. The California Supreme Court found the married couple “affirmatively intended the birth of the child and took the steps necessary to effect in vitro fertilization. But for their acted-on intention, the child would not exist.” Id. at 93. The court found that the married woman was intended to be the child’s mother. Affirming the judgment of the court of appeal that the husband and wife were the child’s genetic, biological, and natural parents, the California Supreme Court found that the surrogate had no parental rights to the child. The contract was held both legal and enforceable against the surrogate’s claims.

“Within the context of artificial reproductive techniques, intentions that are voluntarily chosen, deliberate, express, and bargained-for ought presumptively to determine legal parenthood.” Kristine M. v. David P., 135 Cal. App. 4th 783, 790-91 (2006) (quoting Schultz, Reproductive Tech. and Intent-Based Parenthood: An Opportunity for Gender Neutrality, Wis. L.Rev. 297, 323 (1990).). Similar to Johnson v. Calvert, “the child would not have been born but for the efforts of the intended parents.” Johnson, 5 Cal. 4th at 113 (quoting John Lawrence Hill, What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353, 415 (1991).).

Husband, in our factual scenario, and his actions establish that both parents (Husband and Wife) affirmatively intended the birth of their daughter and that they took the steps necessary to effect in vitro fertilization with an adopted embryo. “But for” their collective, acted-on intentions, the couple’s child would not exist. These types of considerations are not taken lightly by the family court. A child born by way of artificial reproductive methods should be legitimized no differently than a child genetically (in-part or in-full) the biological child of the parent or parents. There is little room to argue otherwise, especially when the terms of an “Intended Parents Service Agreement” put both parties on notice of the expectations placed upon them as parents no matter what the outcome may be. Conception resulting in multiple children (e.g., twins), a handicapped or special-needs child, or other variances are accounted for in an “Intended Parents Service Agreement” to inform both participant parents that they will be responsible no matter the outcome. This is not a choose-your-own-adventure path to parenthood. The adventure is chosen, and the parents have signed up by way of a contract for all that is in store. The law, protecting the constitutional rights of a child, is not overlooked.

A court can and should consider the conduct of the intended parents, both oral and written communications between the parents, implied agreements, contracts signed, implications of the contracts signed, and the parents’ conduct before and after signing the contract or agreement. Causation (the “but for” analysis) and the parents’ credibility when it comes to factual or circumstantial disputes are also relevant and given due weight by the judicial officer. A balance of the evidence, documentary and testimonial, inferences based on words and conduct, or lack thereof, and public policy are all essential to a court’s findings regarding parentage and child support if requested.

The California Legislature, through Family Code section 7570(a)(1), finds and declares the following:

There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.

Advocating for the best interest of a child is the golden heart of family law. Attorneys are trained in the law and to advocate, but not necessarily to care. Those who care make the difference in the practice of family law.

Ashley Chavez Sedaghat is a family law attorney and Partner of Orange Coast Family Law, APC. She can be reached at ashley@orangecoastfamilylaw.com.