Call for Amicus Support
Borenstein v. Goldshteyn — Court of Appeal of California, Second Appellate District, No. B355195
On appeal from Los Angeles Superior Court No. 22STFL08826 (Hon. Scott J. Nord)
Counsel for Appellant Sofiya Goldshteyn invites amicus curiae participation in an appeal presenting a question of first impression under the California Constitution's guarantee of reproductive freedom.
The question at the heart of this appeal
In 2022, California voters enshrined "reproductive freedom" as a fundamental right in the state Constitution (Cal. Const., art. I, § 1.1, enacted by Proposition 1; see also the Reproductive Privacy Act, Health & Saf. Code § 123462). By its terms, that right protects "the fundamental right to choose to have an abortion" and the fundamental right "to choose to bear a child," expressly including "infertility care."
This appeal asks whether that guarantee protects the freedom to procreate as fully as the freedom to avoid it: specifically, whether one former spouse may use the cryopreserved embryos the couple created during their marriage to have a child, when the other spouse asks the State to order those embryos destroyed.
The case in brief
The case concerns constitutional and statutory claims by a woman seeking control over unimplanted embryos created during marriage. Her ex-husband wants them destroyed. A trial was held in Los Angeles and the trial court ruled in favor of the ex-husband.
The trial court's reasoning rests on the premise that a woman has no constitutional or fundamental reproductive rights in the IVF process:
"As such, the Court declines to address the reproductive rights issue for one simple reason. The Court's decision does not interfere with a party's reproductive rights." Trial Court Order, Los Angeles Superior Court, April 23, 2026.
Relevant Background
Sofiya Goldshteyn and Max Borenstein married in 2014 and later dissolved their marriage. They settled every issue but one. The sole remaining question is the disposition of the cryopreserved embryos the couple created during the marriage. The trial on that issue occurred on February 24, 2026. This appeal followed.
The embryos exist because both parties chose to create them after Ms. Goldshteyn, then in her thirties, was diagnosed with breast cancer and underwent treatment that has left her in medically induced menopause. One of the embryos at issue was created from her own eggs and is, on this record, her last realistic opportunity to have a genetically related child.
Ms. Goldshteyn asked the trial court for exclusive control and use of the embryos so that she could bring them to term. Mr. Borenstein asked the court to order them destroyed or placed beyond her use, framing the dispute as governed by prior "disposition directives." Ms. Goldshteyn's position is that any such order is state action that would extinguish her fundamental constitutional rights to reproductive autonomy and that, because nothing is compelled of Mr. Borenstein's body, his asserted interest cannot override hers. She also argued that the multiple different embryo "disposition directives" were impermissibly ambiguous and vague for failing to identify which embryos were covered by which directives, while also asserting that the embryos at issue in the trial were not covered by a disposition directive.
The trial court side-stepped the constitutional questions and held that none of the constitutional provisions or statutes raised by Ms. Goldshteyn's Trial Brief were at issue because IVF does not implicate reproductive rights. The Court ordered the embryos to be conveyed to the husband who wants to see them destroyed. Ms. Goldshteyn timely appealed.
Questions presented
- Whether the California Constitution's guarantees of privacy and reproductive freedom (art. I, § 1.1) and the Reproductive Privacy Act, which expressly protect the fundamental right to choose to bear a child, including through infertility care, protect a woman's right to use cryopreserved embryos to have a child.
- Whether an order destroying the parties' cryopreserved embryos, or placing them beyond Appellant's use over her objection, is state action that infringes a fundamental right and is therefore presumptively unconstitutional, subject to strict scrutiny under the United States Constitution and the California Constitution, where less restrictive, rights-respecting alternatives are available, including an order of nonparentage under Family Code section 7613(e).
- Whether a judicially enforced spousal veto conditioning Appellant's ability to attempt pregnancy through the parties' embryos on her former spouse's consent violates the equal protection guarantees of the California and United States Constitutions by imposing a sex-linked burden on a reproductive choice that, by biological necessity, only Appellant can exercise.
- Whether the trial court erred in ordering the disposition of the parties' cryopreserved embryos in a manner that permanently forecloses Appellant's ability to use them to bear a child, without applying strict scrutiny or requiring Respondent to demonstrate a compelling interest achieved through the least restrictive means.
Amicus Partners
This appeal will shape the meaning of a right Californians recently placed in their Constitution, and it does so on a question that scrambles the usual alignments, a pro-choice constitutional text invoked to protect the choice to give life. We welcome amici from across the legal and philosophical spectrum:
For reproductive-rights and civil-liberties advocates. An order that conditions a woman's ability to attempt pregnancy on her former husband's consent revives precisely the sex-linked "spousal veto" that constitutional law has long rejected and interferes with the rights to privacy and reproductive autonomy granted by California constitutional and statutory law.
For pro-life and conservative groups. This appeal presents the opportunity to establish, through California's own reproductive-choice guarantee, constitutional protection for the preservation of human embryos and for one parent's choice to bring nascent life to term rather than see it destroyed.
For scholars of constitutional law. This is a question of first impression on the text, history, and scope of article I, section 1.1 and Proposition 1; on the standard of scrutiny governing competing procreative interests; and on the limits of enforcing private "disposition" agreements against fundamental rights.
The common thread, whatever one's starting point: this Court's decision will determine whether "reproductive freedom" protects the decision to give life as robustly as it protects the decision not to.
Who we are seeking
We are especially interested in amicus briefs that cover the following areas: the text and history of Proposition 1; the standard-of-scrutiny and spousal-veto and equal-protection analysis; comparative embryo-disposition jurisprudence from other states; the bioethics of embryo disposition; and the real-world stakes for cancer survivors and others who rely on infertility care. Joint briefs among aligned amici are welcome.
How to participate
Counsel for Appellant will gladly provide the record, discuss the issues, and coordinate on timing and briefing roles. Consistent with the rules governing amicus practice, amici author their own briefs; counsel does not draft or fund amicus submissions.
Amicus curiae briefs in the Court of Appeal are governed by California Rules of Court, rule 8.200(c), which requires an application for permission to file and disclosure of who authored or funded the brief. The application deadline runs 14 days after Appellant's reply brief is filed (or the time to file it expires), the last of the three merits briefs. Based on the current schedule, we anticipate that window opening in fall 2026 and closing in late November 2026. Those dates are subject to the court's briefing schedule and any extensions, and amici need not wait for the deadline to file. Because a strong amicus brief needs lead time, we encourage interested amici to reach out as early as possible. Please contact counsel for the current dates.
Documents
Max Borenstein’s Closing Trial Brief
Sofiya’s Reply to Max Borenstein’s Closing Trial Brief
Sofiya's Request for Statement of Decision
The Trial Court's Statement of Decision (Verdict and Opinion)
Sofiya's Objections to The Trial Court's Statement of Decision
Voter Information and Ballot Materials regarding California Constitutional Amendment 1.1
Legislative History of California’s Reproductive Privacy Act
Contact
Counsel for Appellant Sofiya Goldshteyn:
J.R. Howell
Law Office of J.R. Howell
jr@lojrh.com
(323) 897-8656
2219 Main Street, Suite 436, Santa Monica, California 90405
Disclosure
This page is maintained by counsel for Appellant Sofiya Goldshteyn. The posted documents are part of the appellate record. Nothing on this page is legal advice or an offer of representation, and any amicus brief reflects the independent views of its author.