Contract terms control disposition of frozen embryos upon divorce. . .

In a matter of first impression, the Fourth District held that where parties have entered into a valid contract specifying how frozen embryos shall be treated in the event of a divorce or legal separation, the contractual approach for determining disposition of frozen embryos upon divorce governs; as such, the trial court did not err by awarding wife frozen embryos in dissolution action where husband and wife entered into a valid in vitro fertilization agreement specifying that upon divorce the embryos would be made available to the other partner.

Hoang Long Ngoc Pham and Nozomi Kon entered into a written agreement involving an in vitro fertilization (IVF Agreement). The IVF Agreement contained a provision setting forth what would happen to the embryos created during the IVF process should specified adverse events occur. The parties checked a box indicating that upon the occurrence of a legal separation or divorce, the embryos would be "'[m]ade available to the partner if he/she wishes.'" The parties checked a box next to this option and placed their initials next to it as well. In selecting this option, the parties chose not to check the boxes indicating the embryos would be donated to another person or couple, thawed and discarded, or donated for research.

In October 2024, Pham filed a dissolution petition. In January 2025, Pham filed a motion to discard two embryos being retained by an IVF provider. Kon, meanwhile, filed a request for order seeking immediate rights to the frozen embryos.

On March 21, 2025, the trial court held an evidentiary hearing on the parties' requests. At trial, the trial court admitted the IVF Agreement as an exhibit. Pham admitted to signing the agreement and initialing the relevant provision. At the conclusion of the hearing, Pham requested the embryos be destroyed. In a minute order that same day, the trial court (Orange County's Kohler) found the contract to be valid and unambiguous and awarded the embryos to Kon. The minute order directed Kon to prepare the order after hearing. On April 30, 2025, the trial court entered its findings after hearing, finding the IVF Agreement "'valid, clear, and unambiguous'" and awarding the embryos to Kon. On May 1, 2025, Pham appealed. The Fourth District treated the appeal as a petition for writ of mandate but denied the petition.

In a short, unpublished portion of its opinion, the Fourth District held that the order was not appealable, since a final judgment had not been entered in the dissolution proceedings and the order is not an appealable order under CCP §904.1 [appealable orders and judgments]. Nevertheless, the panel exercised its discretion to treat the purported appeal as a petition for writ of mandate after noting that both parties urged the justices to reach the merits of this issue.

In the published portion of its opinion, the panel announced the appropriate standard of review. The justices noted "'We independently review the trial court's interpretation of a contract...unless the interpretation depends on the trial court's resolution of factual questions concerning the credibility of extrinsic evidence.'" According to the justices, Pham did not cite any such extrinsic evidence, nor did he present any extrinsic evidence to the trial court. As such, the justices concluded independent review of the contract issue was appropriate.

Turning to the contract itself, the justices concluded the IVF Agreement is valid and unambiguous. In so concluding, the justices found unpersuasive Pham's argument that the agreement was ambiguous insofar as the phrase "'made available to the partner if he/she wishes'" can mean either "'transfer of custody for safekeeping, or conditional availability subject to mutual consent.'" The justices disagreed with Pham's contention, noting that the parties' selected language (and the fact that they did not select the option to have the embryos "'[t]hawed and discarded'") makes Pham's restricted interpretation unreasonable.

In a matter of first impression, the Fourth District adopts the contractual approach. . .
Pham next argued that the IVF Agreement should not control, contending that use of frozen embryos to achieve pregnancy requires contemporaneous mutual consent. The justices disagreed, noting that other jurisdictions that have addressed this issue have taken one of three approaches: the contractual approach, the balancing approach, and the contemporaneous mutual consent approach.

Under the contractual approach, a court considers whether there is an enforceable agreement between the parties for the disposition of the embryos upon divorce. If so, the court enforces the parties' agreement. The justices noted the several benefits of this approach. First, the progenitors (and not the courts) decide "'this deeply personal life choice.'" Second, this approach encourages serious discussion between the progenitors in advance of divorce. And third, this approach creates “‘a measure of certainty’” that helps progenitors avoid costly litigation.

Under the balancing approach, courts weigh the parties' respective interest. Among other things, courts consider the intended use of the party seeking to preserve the disputed pre-embryos and the ability of the party seeking to implant the pre-embryos to have biological children through other means. The justices noted that some courts consider the balancing approach only after determining that no enforceable agreement exists.

Under the contemporaneous mutual consent approach, both parties must agree at the time of disposition of the embryos what will be done with them. If the parties cannot agree, courts enforce the status quo. Pham argued that the Fourth District should adopt this approach after noting that the majority of courts endorse this model (although, as the justices pointed out, Pham provided only two citations in support of his claim that this approach has been widely adopted).

Noting that this issue is a matter of first impression for California appellate courts, the Fourth District concluded that “where, as here, the parties have entered into a valid contract specifying how the frozen embryos shall be treated in the event of divorce or legal separation, the contractual approach governs.” In support of this adoption, the justices noted this approach minimizes misunderstandings, provides certainty for progenitors and fertility clinics, and decreases the likelihood of litigation. The justices added that the contractual approach aligns with California’s existing statutory framework. For example, H&S C §125315(b) requires a health care provider that is providing fertility treatment to give a form to specified parties that sets forth advanced written directives regarding the disposition of embryos in the event that the partner separate or divorce.

Lastly, Pham argued that enforcing the IVF Agreement would violate public policy as well as his constitutional privacy right. The justices made short work of both arguments. Regarding the former contention, the justices reiterated California policy requires health care providers providing fertility treatment to give advance directives with provisions similar to the one in the parties' IVF Agreement. Regarding the latter contention, the justices noted that Pham forfeited his constitutional argument by failing to raise this argument at trial.

Accordingly, the Fourth District treated Pham's purported appeal as a petition for writ of mandate and denies the petition.