Splitting the Baby: The Implications of Classifying Pre-Embryos as Community Property in Divorce Proceedings and Its Impacts on Gestational Surrogacy Agreements


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.



IVF, In vitro fertilization, In re Marriage of Findley v. Lee, Loeb v. Vergara, Property interest, Valuation of pre-embryo, Surrogacy and gestation agreements, Community property states, Uniform Parentage Act (1973), Uniform Parentage Act (2002)


8 Est. Plan. & Cmty. Prop. L. J. 505