The California Court of Appeal, in Hoang Long Ngoc Pham v. Superior Court of Orange County (Cal. Ct. App., Dec. 16, 2025), addressed a dispute over the disposition of two frozen embryos created through IVF by a married couple who were divorcing. Pham (husband) sought to have the embryos discarded, asserting a right not to procreate, while Kon (wife) sought to use them to attempt pregnancy.
The parties signed a written IVF consent agreement specifying what would happen to embryos upon certain “adverse events,” including divorce. For divorce, they selected and initialed the option that embryos would be “[m]ade available to the partner if he/she wishes.” After separation, Kon requested the embryos; Pham opposed.
The Court of Appeal affirmed the trial court’s interpretation and enforcement of the IVF agreement. The Court ruled: Where parties have a valid, clear agreement specifying embryo disposition upon divorce, that contract controls. The phrase “made available to the partner if he/she wishes” was unambiguous and meant Kon could use the embryos to attempt pregnancy.
The Court stated: “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. The contractual approach “ ‘minimize[s] misunderstandings and maximize[s] procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.’ ” (Rooks, supra, 429 P.3d at p. 592.) There are also “significant benefits to making this decision in advance, rather than at the moment of disposition. Preexisting agreements ‘promote serious discussions between the parties prior to participating in in vitro fertilization’; [citation]; and manifest choices ‘made before disputes erupt ’ [Citation.] This ‘minimize[s] misunderstandings’ that might arise in the future, provides certainty for progenitors and fertility clinics, and decreases the likelihood of litigation.” (Bilbao, supra, 217 A.3d at p. 986.)”
This is a helpful case because it advises couples to put their intentions in writing, which will be honored by the law. Discussing these issues with various professionals prior to building your family is highly advised.
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