IVF · Frozen embryos · California divorce
Frozen Embryos and IVF Agreements in a California Divorce
Quick answer: In California, if you and your spouse signed a valid agreement saying what happens to your embryos if you separate or divorce, a court will generally enforce it. That is the rule from Pham v. Superior Court (2025) 117 Cal.App.5th 115, the first published California appellate decision on the issue. Who is a legal parent if embryos are used after the divorce, and what your clinic will actually allow, are separate questions. Your documents, your agreement and the clinic’s own requirements all need to line up.
Who decides what happens to frozen embryos after a California divorce?
Start with the documents you signed. Before IVF, California clinics must give patients a form with advance directions for what happens to remaining embryos in specific situations, including separation or divorce (Health & Safety Code § 125315). Many couples initialed a choice years ago and have not looked at it since.
If that choice is clear and the agreement is valid, it will likely control. If the forms are silent, conflicting or unclear, or if you both now want something different, you have room to decide together, and that is where a careful, structured conversation helps most.
What the Pham decision did and didn’t decide
In Pham v. Superior Court (2025) 117 Cal.App.5th 115, a couple had created two embryos. On their clinic’s informed consent form, under the heading for legal separation or divorce, both spouses initialed that the embryos would be “made available to the partner if he/she wishes.” After they separated, the husband asked to discard the embryos and the wife asked to use them. The trial court enforced the form and awarded the embryos to the wife, and the Court of Appeal agreed.
The court adopted what is called the contractual approach: where the parties have a valid agreement specifying what happens to embryos on divorce, that agreement governs. It noted that California law requires clinics to offer these advance directives, and it would make little sense to require them and then refuse to enforce them.
Pham left some questions open:
- No clear agreement. The court did not adopt a rule for cases with no valid agreement, or with one that doesn’t answer the question. Other states handle those cases differently: some weigh each person’s interests, and some require both people to agree at the time.
- The right not to become a parent. The husband’s constitutional argument was not decided because the court found it had not been properly raised.
- Parentage. The case decided who controls the embryos, not who would be a legal parent of a resulting child.
Two sets of documents: the IVF consents and the storage contract
Embryo disputes often turn on paperwork. We review two sets of documents, because they answer different questions.
1. The IVF consent and disposition directives
These are the forms you signed with your fertility clinic before treatment. California requires them to offer, for separation or divorce, at least these choices: made available to the female partner, made available to the male partner, donated for research, thawed with no further action, donated to another couple or individual, or another clearly stated disposition. The forms must also state the time limit on storage and address what happens if embryos are abandoned or storage fees go unpaid. Couples sometimes signed more than one version over time.
2. The storage contract
Embryos are often moved to a separate storage company or held under a storage agreement with its own terms. For both sets of documents, we look at:
- Who signed. Did both of you sign each form and each update?
- Who is named on the account. Whose name is on the storage account, and are both of you listed?
- Who pays and who receives notices. Whose card or account pays fees, and who gets renewal, fee and abandonment notices?
- Whose signatures are required. What the clinic or storage company requires for continued storage, transfer to another facility, use in treatment, donation, or disposal.
Being the account holder or the person who pays does not by itself decide who legally controls the embryos. It does affect practical matters, such as who hears about a missed payment in time. The agreements you both signed, your divorce agreement and any court order are what matter legally, and the facility’s own signature rules determine what it will actually do.
What couples can decide together in mediation
Scott has helped clients negotiate embryo terms as part of their divorce settlements. Couples usually consider one of three broad approaches, or a combination. Before agreeing to anything, confirm that the clinic and storage company will carry it out. Don’t assume a facility will permit a particular allocation, a transfer, or use by one person alone.
Allocating specific embryos to each person
Some couples agree that particular embryos will be allocated to each person. Details to settle include:
- which embryos go to whom, using the facility’s identifiers
- who pays future storage for each allocation
- whether each person may use, donate, transfer or discard their allocation without the other’s further consent
- how parentage will be handled if an embryo is used (see the parentage section below)
Many facilities have firm policies about releasing or using embryos created with two people’s genetic material. An allocation that works on paper may still require the facility’s approval, additional signed forms, or a court order.
Keeping shared control and storage
Some couples are not ready to decide and choose to keep the embryos stored under shared control for now. If you do, spell out:
- Fees: who pays storage fees, in what shares, how payment is made, and what happens if one person stops paying
- Consent: whose written consent is required for any use, transfer, donation or disposal (usually both, but say so expressly)
- Deadlines: how long storage continues, when you will revisit the decision, and what happens by default if you don’t
- Notices: who receives facility notices and a duty to forward them promptly
- Later disagreement: for example, returning to mediation first, then a default outcome you choose now, or asking the court to decide
- Death or incapacity: what happens if either person dies or cannot make decisions
Shared control avoids forcing a decision before you are ready, but without clear deadlines and a plan for disagreement, it can postpone the conflict rather than resolve it.
Agreeing on another disposition
Some couples agree on a single outcome for all embryos: donation to another couple or individual, donation for research, or thawing with no further action. Each of these requires the facility’s own consent forms, often signed by both of you, and the facility may have its own screening or eligibility requirements for donation.
Embryo disposition and legal parentage are different questions
Deciding who may use embryos is not the same as deciding who will be the legal parent of a child born from them. Couples approach this differently:
- Both hope to be parents. Some couples agree that one person may use embryos after the divorce while both hope to have parental rights and responsibilities. An agreement between the two of you does not by itself establish that both of you will be legal parents; how parentage would be established depends on the circumstances and may require additional documents or a court order.
- Only the person using them is a parent. Others intend that only the person using the embryos will be a legal parent.
These situations call for different documents, and neither result is automatic.
California Family Code § 7613(e) addresses the second situation. It allows people who share legal control over embryos to sign a written agreement in which one person renounces all legal interest in them, with the intent not to be a legal parent of any child conceived with them. If the people signing are married to each other when they sign, the agreement becomes legally binding only when the court enters a final decree of dissolution that incorporates it. For people who are not married to each other, the agreement takes effect once everyone with a legal interest in or control over the embryos has signed.
Once the agreement is binding, the person who renounced their interest is treated as a donor, not a legal parent, and the person who keeps control has the sole right to determine the use and disposition of the embryos, subject to the consent requirements in § 7613(d)(2) when donated eggs, sperm or embryos are involved. That subdivision generally requires the written consent of each original provider of the genetic material, so other people’s consent may matter. Either party may file the agreement with the court, which then issues an order establishing the donor’s nonparentage. Because of the final-decree requirement for married couples, these terms need to be drafted carefully into your divorce judgment, not signed separately and set aside.
Section 7613(e) does not resolve every parentage question. It does not address couples who want both people to remain parents after one uses the embryos, and it does not cover every situation involving donated gametes or embryos or a surrogate. Parentage can affect custody, child support, inheritance and a child’s birth certificate. Before signing, each person should get independent advice from a reproductive-law attorney and coordinate with the clinic about any court order or additional documents it requires.
Putting your decisions in writing, for the court and the clinic
An agreement is only as useful as its follow-through. Your terms should be written clearly into your marital settlement agreement and divorce judgment, including incorporation of any § 7613(e) agreement where it applies. You will usually also need to sign updated directives on the clinic’s and storage company’s own forms.
Before your judgment is finalized, confirm with each facility what it will accept, including its forms, signature requirements and whether it needs a court order, so your court documents and the facility’s instructions say the same thing.
While your divorce is pending
As a practical matter, don’t ask the clinic or storage company to change, release, transfer or discard anything while your divorce is pending without your spouse’s written consent or a court order. Facilities often require both signatures anyway, and acting alone can damage trust, complicate negotiations and create legal risk that cannot be undone.
When you should get advice just for you
Decisions about embryos can touch deeply held values about parenthood, religion and the future. Many people want a lawyer who advises only them before they agree to anything. You can get that advice at any point, including before signing a mediated agreement. For parentage questions in particular, independent advice from a reproductive-law attorney is strongly recommended.
How Scott can help
As your mediator, Scott Levin, Esq., CDFA® is neutral. He has helped divorcing couples negotiate embryo terms. He helps both of you gather and understand your IVF consents and storage contracts, talk through the options at a pace that respects how personal this is, and write your decisions into a clear settlement agreement and judgment. He does not represent either of you, choose an outcome, or promise how a court or facility will respond. Learn how attorney-led divorce mediation works.
As a consulting attorney, in a case where he is not your mediator, Scott can advise one spouse privately about options and paperwork, including if you are working with a different mediator or negotiating directly. He never serves in both roles in the same case. See consulting attorney services.
Frequently asked questions
Does the clinic form always decide the outcome?
Not always. Pham holds that a valid agreement specifying what happens on divorce will be enforced. Whether a particular form is valid, clear and applies to your situation depends on its wording and the facts.
What if our forms don’t address divorce, or we disagree about what they mean?
California has not settled a rule for that situation. Couples in that position often benefit most from reaching a written agreement rather than asking a court to decide an open legal question.
I pay the storage fees. Does that mean I control the embryos?
No. Paying the fees or being named on the account does not by itself decide legal control. It does matter practically, for example for who receives notices, so address it in your agreement.
If one of us uses the embryos after the divorce, will the other be a parent?
It depends on the documents and circumstances. Deciding who may use the embryos does not settle parentage. California law provides a way for one person to give up parental status in some situations (Family Code § 7613(e)), but it does not cover every scenario. Get independent reproductive-law advice before signing.
Can we choose something other than the options on the clinic form?
Often, yes. The law requires clinics to offer an “other disposition that is clearly stated,” and couples can agree on new terms in their divorce. Confirm the facility will honor your agreement and sign its updated forms.
Sources: Pham v. Superior Court (2025) 117 Cal.App.5th 115; Cal. Family Code § 7613; Cal. Health & Safety Code § 125315.
Talk it through before anything is final
Schedule a free 15-minute consultation to learn how mediation or individual consulting could help with your situation.
General information only, not legal advice for your situation. Law in this area is developing, and outcomes depend on your documents, the facts and each facility’s policies. A consultation does not create an attorney-client relationship. When serving as a mediator, Scott is neutral and does not represent either party.