If you are considering starting a family using assisted reproductive technology (ART), it is important to understand what could happen if you and your partner break up. Understanding how California law handles embryo disputes is important before proceeding.
Preparing for an embryo custody battle
If you and your partner are considering using ART to conceive a child, it is vital to make sure that you have a written agreement in place governing the use of any embryos created. This agreement should address who will be responsible for the embryos if the relationship ends, as well as what will happen if one partner wants to keep the embryos while the other does not.
If you are using a gestational carrier, ensure that she signs an agreement agreeing to return the embryos to you in the event of a dispute. You should also make sure that your surrogacy contract includes a provision stating who will have custody of any resulting children in the event of a dispute. The same applies to when you have an egg or sperm donor.
It is also important to keep track of all communications between you and your embryo donors or surrogates. If there is a dispute, these communications can be used as evidence.
Finally, it is always a good idea to consult with an attorney if you consider using embryos to build your family. An experienced attorney can help you draft an agreement that protects your interests in the event of a dispute.
California laws on embryo disputes
Under California law, disputes over embryo custody are handled like any other child custody dispute. The court will consider a variety of factors in making its determination, including the wishes of both parties and the children’s best interests. Generally, courts will favor keeping siblings together whenever possible, so if both parties want to keep the embryos, the court is likely to rule in their favor.
Whatever the outcome of your custody battle, it is important to keep in mind that embryos are potential life, and the child born will need the best care to survive. So, aim to keep the interest of your future child first. You can even have a reasonable shared custody agreement with the other parent if you like.