Wednesday, December 17, 2025
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Court of Appeal:
Contract Controls What Happens to Embryos Upon Divorce
Opinion Declines to Adopt Mutual Consent Approach, Says Wife Is Entitled to Try to Impregnate Herself Against Wishes of Soon-to-Be-Ex-Husband Based on Provision in IVF Agreement
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal held yesterday, in a matter of first impression in California, that the provisions of a valid agreement, entered into upon initiation of in vitro fertilization efforts, dealing with the fate of any frozen embryos remaining at the time of divorce, control the disposition of the frozen fertilized eggs upon dissolution of the marriage regardless of the parties’ current preferences.
Yesterday’s opinion affirms an order giving a soon-to-be ex-wife custody over the couple’s preserved embryos—which she said she intends to use to try to get pregnant—despite objections of the man who helped create them, based on a contract provision providing that, upon divorce, the fertilized eggs would be “made available to the partner if he/she wishes.”
Rejecting the man’s assertion that a “legal, moral right to change [one’s] mind” after signing should be recognized in such cases, as any alternative interpretation would violate one party’s entitlement to choose “not to procreate,” the court declined to impose a “mutual consent” approach as to how to handle the disposition of frozen embryos.
Justice Martha K. Gooding authored the decision, joined in by Acting Presiding Justice Maurice Sanchez and Justice Nathan Scott, acknowledging that other jurisdictions have taken alternative approaches but saying:
“[W]e conclude that where, as here, the parties have entered into a valid contract specifying how frozen embryos created by IVF shall be treated in the event of divorce, the parties’ contract governs. We conclude the trial court correctly interpreted the IVF Agreement and awarded the embryos to [the would-be mother].”
Divorce Proceedings
The question arose after Hoang Long Ngoc Pham filed for divorce against his wife, Nozomi Kon, in October of last year. In January, he filed a motion seeking a court order to have two frozen embryos, which were being stored by an IVF provider, discarded; Kon responded by requesting that she be given immediate rights to the fertilized eggs.
On March 21, Orange Superior Court Commissioner Robert F. Kohler, serving as a temporary judge, held an evidentiary hearing on the parties’ dueling requests and admitted the IVF agreement as an exhibit.
In the contract, entered into at the beginning of the fertility treatments, the couple each initialed a checked box indicating that they wished to have any embryos “[m]ade available to the partner if he/she wishes” in the event of separation or divorce. A choice calling for the destruction and discarding of any stored material was not selected.
In April, Kohler awarded the embryos to Kon.
Yesterday’s opinion notes, in an unpublished portion of the decision, that “there [does] not appear to be a judgment entered in the dissolution proceedings” and that Kohler’s order is not appealable. However, Gooding said:
“Under the circumstances here, we exercise our discretion to treat the appeal as a petition for writ of mandate.”
Leading Approaches
The jurist remarked that “neither party has cited a published California appellate decision directly addressing the applicable approach under California law for determining the disposition of frozen embryos upon divorce[,] nor have we found one,” and said:
“There appear to be three leading approaches—the contractual approach, the balancing [of the parties’ interests] approach, and the contemporaneous mutual consent approach—to determine the disposition of frozen embryos upon divorce.”
Noting that Pham only cited two out-of-state cases adopting the mutual consent approach, under which courts have held that the status quo of the embryos is maintained unless the parties agree to an alternative disposition, the court declined to follow suit, declaring:
“We conclude 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….There are also ‘significant benefits to making this decision in advance, rather than at the moment of disposition.’ ”
Saying that enforcing pre-existing agreements will encourage couples to make decisions before tensions erupt during dissolution proceedings, Gooding opined that the approach also “is consistent with California’s articulated public policy” favoring advanced written directives concerning medical decisions.
As to Pham’s assertion that enforcing the provision would violate public policy, she wrote:
“Pham acknowledged in writing that he ‘freely consent[ed] to undergo an IVF procedure to attempt to obtain a pregnancy’ and agreed the resulting frozen embryos would be made available to Kon, if she wished, in the event of divorce or legal separation. We find no policy in California that is antithetical to the enforcement of such an agreement.”
Addressing his assertion that granting Kon authority over the embryos would violate his right not to procreate, which he claimed is “a fundamental right” subject to “strict scrutiny,” Gooding responded that “Pham has forfeited this argument” by failing to raise it in the trial court. She added:
“Moreover, although Pham generally argues on appeal his right not to procreate is infringed and strict scrutiny applies, he has forfeited this argument by failing to provide developed argument, with applicable case authority, to support this claim.”
Having decided that the contract controls, she turned to the provision in question, commenting:
“We conclude the phrase ‘[m]ade available to the partner if he/she wishes’ is unambiguous in this context, and the only reasonable interpretation is the embryos are to be made available to Kon, if she wishes, so she may use them for the stated purpose of the IVF Agreement—i.e., to attempt to obtain a pregnancy. We conclude Pham’s alternative interpretation—that this clause only permitted Kon to take custody of the embryos for safekeeping and required further mutual consent for Kon to use the embryos to attempt to have a child—is not reasonable.”
The case is Pham v. Superior Court (Kon), 2025 S.O.S. 3704.
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