Article on Pre-Embryos as Community Property & Gestational Surrogacy Agreements

Derek Mergele-Rust recently published an Article entitled, Splitting the Baby: The Implications of Classifying Pre-Embryos as Community Property in Divorce Proceedings and Its Impacts on Gestational Surrogacy Agreements, 8 Est. Plan. & Community Prop. L.J., 505 (2016). Provided below is a summary of the Article:

Forty-three years ago, in 1978, the first baby was born using in vitro fertilization (IVF). Since that time, scientists and doctors have gained access to significantly more sophisticated techniques to assist adults in having biological children. IVF has resulted in the birth of 45,000 American babies. However, when adults turn to doctors and hospitals for reproductive assistance, constitutional, property, and contractual issues arise. When potential parents contemplate IVF procedures, a complex IVF agreement is usually signed that informs the hospital and the progenitors, or intended parents, of what will happen to the pre-embryos in certain circumstances. But, what happens when the progenitors separate or divorce and one or both parties change their mind about having the hospital discard any remaining pre-embryos as per the previously-signed IVF agreement? What happens if the court finds that the agreement is not legally binding? What happens when a party is awarded the pre-embryos and is biologically unable to use the pre-embryos to produce a biological child?

First, this comment will explore two cases in California where one party is seeking control over the pre-embryos in order to use the pre-embryos to procreate. One of the cases highlights a woman desiring to use the pre-embryos, and the other case discusses a man that wants custody over the pre-embryos. Second, this comment will examine the seminal case, Davis v. Davis, and its progeny of cases, and summarize the jurisprudence of IVF agreements to glean possible connections and insight into potential outcomes for the two California cases. Third, assuming that one of the progenitors from one of the California cases is awarded the pre-embryos, this comment will examine what kind of interest a person might have in a pre-embryo and how a court might value that interest. Fourth, this comment will address what happens when a party gains possession of the pre-embryos, is biologically unable to have a child, and seeks to use the pre-embryo through a gestational surrogate, utilizing a gestational agreement in a community property state. Finally, this comment will discuss the transitory nature of the United States population, and propose three statutes that create the necessary continuity and consistency linking the disposition of pre-embryos from IVF agreements and gestational surrogacy agreements. The statutes will also provide clear guidelines for the minimum requirements that IVF agreements and gestational surrogacy agreements need to be valid, binding contracts.