Pham v. Superior Court (Cal. Ct. App. - Dec. 16, 2025)

I certainly understand why Justice Gooding published this opinion today. It's definitely an important topic: When frozen fertilized embryos are jointly owned during a marriage, is one spouse entitled to possess (and potentially use) those embryos after a divorce even over the objection of the former spouse? There is also apparently a "case of apparent first impression in California appellate courts," so I can readily see why the Court of Appeal might want to resolve this issue in a published opinion.

Today's opinion holds that when the parties have contractually agreed (while married) that one spouse may use the embryos, if s/he wishes, in the event of a divorce, the California courts will enforce that provision notwithstanding the changed consent of the other (now former) spouse. As a result, even though someone no longer consents to being a parent, their prior consent to being a parent is sufficient.

That might perhaps be the right rule. At least at present, I don't have unalterably strong feelings about it one way or the other. I see the argument for it, though at the same time, readily understand the arguments the other way as well. It's definitely not an easy issue.

But what struck me about today's published opinion is that it's rendered in a case in which both parties are representing themselves pro per. I'm confident that the Court of Appeal was fully aware of the arguments that both sides raised. But, to be honest, on an issue that's this important, I would personally be reluctant to decide the thing -- especially in a published opinion that's binding on trial courts -- without informed briefing from lawyers, (potentially) amici, and the like. None of which transpires here.

It'd be one thing if all the states agreed that contractual provisions like these are enforced. But that's most definitely not the case. Some states enforce them. Other states adopt a balancing test instead. And other states -- perhaps even a majority (at least according to one of the pro per briefs) -- don't enforce these types of contractual provisions at all, holding that consent is instead required at the time the person is proposed to become a parent. (Kinda like sex itself.)

Particularly given these conflicting judicial views, I might be hesitant to decide -- or at least publish -- an opinion that resolves this dispute without the (presumptively helpful and informative) input of lawyers and other interested persons, rather than relying solely on the briefs of pro per litigants.

I understand the contrary view, and I'm confident that the Court of Appeal thought that it could correctly adjudicate this issue based upon the limited materials already available to it.

But I can very much see the other side as well.