FAMILY LAW ARTICLES
Legal Treatment of Frozen Embryos upon Dissolution. Part 1 of 6.
We have been watching the development of several cases in our Family Law courts throughout the State of California, dealing with the question of whether frozen embryos should be treated as property, or as a potential human being. Even now, the case of Dr. Mimi Lee versus Stephen Findley, out of San Francisco, is dealing with just this issue.
This will be a long discussion. My compliments to R. Benjamin Vojtik, our Law Clerk, for his research on this issue. This 5-piece article is essentially his work.
Does Current Law Give Pre-Embryos a Right to Live?
California Health & Safety Code §123466 states “The state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.”
California Health & Safety Code §123464(d) provides that “viability” is “the point in a pregnancy when in the good faith medical judgment of a physician, on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.”
Thus, California currently recognizes no “right” for a fetus to live until it becomes viable. It would be inconsistent to apply a different standard to pre-embryos and gametic material. There is little or no existing legal foundation to apply a “right to life” standard to frozen pre-embryos.
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Definitions:
The following definitions are important to your understanding of this 5-part discussion regarding California’s treatment of frozen embryos:
Gametic Material: a mature haploid male or female germ cell that is able to unite with another of the opposite sex in sexual reproduction to form a zygote/embryo.
Pre-Embryo: a human conceptus at least between fertilization and implantation; this is also known as a pro-embryo. A conceptus between fertilization and implantation is also frequently termed as an embryo.
Embryo: an unborn offspring in the process of development, commonly referred to as a zygote (first 8 weeks of pregnancy).
Fetus: an unborn offspring of a mammal, in particular an unborn human baby more than 8 weeks after conception.
