Earlier this year, the New York Times presented a detailed article discussing the modern frontier of property division that is division of embryos. “The issue played out publicly [in March] when a Los Angeles Superior Court judge ruled against Nick Loeb, the ex-fiancé of the “Modern Family” actress Sofía Vergara, after he sued her for custody of embryos they created while they were together.” There are three leading approaches taken by different states as to this issue: the contractual approach, the balancing approach, and the contemporaneous mutual assent approach.
The Connecticut Supreme Court made a major foray into this issue in 2019 in Bilbao v. Goodwin. The trial court in Bilbao found the parties’ contract with the IVF facility to be unenforceable and awarded the pre-embryos to Wife as property under § 46b-81. The Supreme Court reversed the trial court decision and enforced the original storage agreement that the parties had signed, applying the contractual approach. The Bilbao holding was limited, however, to contracts that, if enforced, would not result in procreation. The holding also did not address what would happen in the absence of an enforceable agreement.
Bilbao will not be the last word in Connecticut on dividing embryos. The most important steps a person can take are to have meaningful discussions with counsel before engaging in IVF, reviewing IVF contracts with an experienced family attorney even where the contract is just “checkboxes” and making sure, in the event of a divorce, that one’s divorce lawyer is made aware of the issue early on in the process.