Modern Family Law: Who Gets the Frozen Pre-Embryos?

By Derek Stikeleather

With the increasing use of cryogenic preservation in fertility treatments (and thousands of Maryland divorces every year), it was only a matter of time before Maryland’s appellate courts would need to create a framework for resolving custody disputes over frozen pre-embryos. That time arrived last month when the Court of Special Appeals handed down its reported decision in Jocelyn P. v. Joshua P., No. 2125, September Term, 2019. It is the first Maryland appellate decision to “examine how to determine the rights of parties, upon dissolution of their marriage or partnership, in a pre-embryo that they jointly created and cryopreserved.”[1]

The court adopted a hybrid test that first looks to the intent of the parties in any relevant prior agreement—focusing on their actual intent instead of boilerplate recitations in form contracts prepared by fertility-treatment centers and storage labs—before applying a multi-factor balancing test. If the parties did not have a (non-boilerplate) “express agreement, courts should seek to balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant the parties’ unique situation.[2]

The court also added factors that trial courts may not consider. It agreed with sister states “that hold it is impermissible for a court to consider financial and economic distinctions between the parties; the number of existing children; or ‘reasonable alternatives,’ such as adoption, available to the party seeking to become a genetic parent.”[3]

The court’s 59-page opinion provides much-needed guidance for Maryland trial courts, which will inevitably see the issue arise again. But the court’s instructions to “take particular care to ensure that [any prior agreement] manifests the progenitors’ actual preferences” rather than form-contract boilerplate seems especially difficult to apply.[4] The premise that a signed form contract might “lack expression or direction from the progenitors” seems counterintuitive because signing a formal contract has long been the quintessential expression of the signer’s direction or actual intent. Any signatories who want to renege on signed agreements that they did not personally draft with ex-spouses need only claim that they did not remember or carefully consider that which they expressly agreed to in writing.

It will be interesting to see how courts apply this directive and what types of evidence are deemed sufficient to show “actual preferences” when parties dispute the proper disposition of their frozen embryonic material. In the recent, much-publicized dispute between Modern Family star Sofia Vergara and her ex-husband over their frozen pre-embryos, a Los Angeles court enforced their contract, which required their mutual agreement before the embryos could be used, despite the ex-husband’s claims that he had a separate oral contract that reflected his actual preferences and was rushed and pressured into signing the form contract without carefully considering it.[5]

Why these cases are so legally difficult:

The case (and others like it) pushes the boundaries of traditional divorce, property, and contract law—none of which seem well-suited to the unique issues that come with a dispute over frozen embryonic material. Traditional divorce law calls upon courts to oversee the equitable distribution of a divorcing couple’s property and, if they have minor children, custody and child-support issues. Often, the parties can (eventually) agree between themselves on these matters and present their resolution to a family-law judge for approval. Pre-nuptial agreements and familiar contract-law principles can facilitate the division of marital property. And the “best interest of the child” remains a clear concept for resolving divorcees’ more delicate disputes over their children.

But a frozen pre-embryo cannot be treated like a house or car, and no judge could reliably apply a best-interest-of-the-embryo standard. As the Court of Special Appeals explained, the “complexity of the human embryo—the science and bundle of competing interests wrapped in it—has challenged scientists, theologians, legal scholars, and ethicists across many disciplines since ancient times.”[6] The “frozen pre-embryo cannot be classified simply as an interest in property because it concerns interests of far broader dimension.”[7] Nor does a frozen pre-embryo enjoy the full legal protection of a newborn baby.

In its frozen pre-embryonic form, the human tissue is inextricably connected to “two rights of equal significance—the right to procreate and the right to avoid procreation.”[8] Because the disposition of the preserved material touches upon the fundamental constitutional rights of both divorcees, it cannot be treated like other marital property. Like many sister states, Maryland now recognizes “the special respect due to cryopreserved pre-embryos in light of their potential for human life as well as the fundamental and coextensive rights of their progenitors to decide ‘whether to bear of beget a child.’”[9]

Three legal approaches:

These disputes have yielded three distinct (and some hybrid) approaches for courts: the (1) contemporaneous-mutual-consent approach, (2) contract approach, and (3) balancing approach. Here, the Baltimore County circuit court adopted the contemporaneous-mutual-consent approach. The circuit court’s divorce decree—issued without any controlling Maryland law to guide it—ordered that the couple’s frozen pre-embryo be jointly held and neither used nor transferred without both parties’ signed authorization. The ex-wife, Jocelyn, wanted to keep the pre-embryo for implantation, and her ex-husband, Joshua, wanted it destroyed or donated to an infertile couple.

Reviewing all three approaches, the Court of Special Appeals rejected the strict contract and contemporaneous-mutual-consent approaches as inequitable and unworkable. It found that holding couples to the boilerplate terms of form contracts entered years before the dispute arose was too arbitrary for such an important decision that touches upon their fundamental rights. It also recognized that the contemporaneous-mutual-consent approach was ill-suited to a divorce proceeding. Every divorce issue that reaches a judge presumably does so only because mutual consent cannot be reached. Requiring mutual consent essentially gives one spouse veto power over the other’s desire to have the desired child.

Embracing a hybrid contract/balancing test, the court vacated and remanded with instructions to consider whether the couple “had an express oral agreement that they would ‘give the embryo the opportunity for life’ and whether that agreement was intended to survive the dissolution of their marriage.”[10] “If the court determines that there was no oral or written agreement that expressly delineated the parties’ intentions, then the court must balance the parties’ interests under the [balancing] framework set out” in the opinion.[11] Although this much-needed legal standard provides valuable guidance for Maryland courts, such disputes seem likely to recur and unlikely to be easily resolved.


[1] Id. at 1.

[2] Id. at 3.

[3] Id. at 4.

[4] Id.

[5] https://www.nbclosangeles.com/news/local/sofia-vergaras-favor-frozen-embryo-lawsuit/2519380/

[6] Jocelyn P. v. Joshua P., No. 2125, September Term, 2019, at 24.

[7] Id. at 25.

[8] Id. at 24.

[9] Id. at 3 (quoting Eisenstaadt v. Baird, 405 U.S. 438, 458 (1972)).

[10] Id. at 4-5.

[11] Id. at 5.

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