Amicus Support in Borenstein v. Goldshteyn Before the California Court of Appeal

The question at the heart of this appeal

When California voters adopted Proposition 1 in 2022, they placed “reproductive freedom” in the state Constitution. Article I, section 1.1 prohibits state interference with an individual’s reproductive freedom in their most intimate decisions and expressly includes the rights to choose abortion and to choose or refuse contraception. The Reproductive Privacy Act separately recognizes every individual’s privacy in reproductive decisions, expressly including “infertility care.” It also protects the “fundamental right to choose to bear a child” for a pregnant individual or an individual who may become pregnant. These provisions protect related choices, although their language differs both in the decisions they identify and in the persons whose rights they expressly protect.¹

This appeal asks whether those protections extend to a woman’s decision to have a child using cryopreserved embryos she and her former spouse created during their marriage, where he now asks the State to order those embryos destroyed. Sofiya invokes the guarantee of reproductive freedom to protect her decision to have a child. The question is whether the State may permanently foreclose that choice without examining the constitutional protection she asserts.

The case in brief

Sofiya seeks possession and reproductive use of unimplanted embryos created during her marriage. Her former husband opposes that use. Following trial in Los Angeles, the court directed the remaining embryo created from Sofiya’s own egg to medical research and awarded the donor-egg embryos to her former husband for disposition as he sees fit. Sofiya challenges those dispositions on constitutional and statutory grounds because they place the embryos beyond her use for the purpose for which she helped create them: having children.

The trial court declined to examine the asserted reproductive rights because it regarded enforcement of the parties’ embryo-disposition agreements as an act that did not interfere with those rights. Its explanation was explicit:

“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.”²

Relevant Background

Sofiya Goldshteyn and Max Borenstein married in 2014 and later dissolved their marriage. Although they settled the other issues arising from the dissolution, they could not agree on the disposition of the cryopreserved embryos they had created during the marriage. That remaining issue was tried on February 24, 2026, and is the subject of this appeal.

Borenstein wrote the screenplay for Godzilla (2014) and served as co-creator, showrunner, and executive producer of HBO’s Winning Time: The Rise of the Lakers Dynasty. Apple has also announced him as an executive producer of its planned Monarch: Legacy of Monsters prequel.

The circumstances in which these embryos were created are relevant to what their disposition would mean for Sofiya. She was in her thirties when she was diagnosed with breast cancer and began fertility injections on the day of her diagnosis, seeking to preserve the possibility of having a child while undergoing surgery, chemotherapy, and radiation. Her treatment has left her in medically induced menopause. Both parties chose to create embryos and later pursued gestational surrogacy. Three pregnancies ended in miscarriage. One of the embryos now at issue was created from Sofiya’s own eggs and is, on this record, her last realistic opportunity to have a genetically related child.³

Sofiya was born in Odessa, Ukraine, and came to Los Angeles as a child refugee. Because her Jewish family had lost many relatives to the Nazis, her wish to continue that family informed both her efforts to preserve her eggs and her selection of an egg donor. Her commitment to having children therefore extends to the donor-egg embryos she helped create, as well as the embryo created from her own egg. As she explained in her testimony, she wanted “the chance to have the children from the embryos that already exist.”⁴

Ms. Goldshteyn asked the trial court to give her exclusive control and use of the embryos so that she could have children with the assistance of a gestational carrier. Mr. Borenstein asked the court to order their destruction or otherwise place them beyond her use, relying on prior “disposition directives.” Sofiya’s argument concerns the judicial action necessary to carry out that request: an order foreclosing reproductive use would, in her view, extinguish rights protected by the Constitution, even if the court characterized its action as enforcement of a private agreement. She further argues that, because her proposed use would compel nothing of Mr. Borenstein’s body, his asserted interest does not justify overriding hers. Her contractual arguments are distinct. She disputes whether the multiple “disposition directives” identify which embryos each covers and contends that the embryos at issue at trial were not covered by a disposition directive at all.

The trial court treated enforcement of the private agreements as enforcement of the parties’ own wishes and, on that basis, declined the constitutional analysis. It ordered the genetic embryo donated to medical research and awarded Mr. Borenstein control over the donor-egg embryos. Its May 12 ruling sustained those dispositions while conditionally leaving additional earlier embryos unadjudicated. Sofiya timely appealed from the rulings that denied her the reproductive use she sought.⁵

The opening brief asks the Court of Appeal to reverse and direct judgment securing Sofiya’s possession, control, and reproductive use of all embryos within the controversy, including her genetic embryo, the donor-egg embryos, and any earlier embryos conditionally left for another proceeding. Because the requested relief depends on identifying and preserving the embryos to which it applies, she also seeks preservation and a reconciled inventory. Only if the court cannot direct that judgment does she request further adjudication under the governing constitutional and contractual standards before disposition occurs.⁶

Questions presented

1. Whether the California Constitution’s guarantees of privacy and reproductive freedom (article I, sections 1 and 1.1) and the Reproductive Privacy Act protect a woman’s right to use cryopreserved embryos to have a child through assisted reproduction.
2. 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.
3. Whether a judicially enforced spousal veto conditioning Appellant’s ability to have children through the parties’ embryos on her former spouse’s consent violates the equal protection guarantees of the California and United States Constitutions by burdening her reproductive choice because she must rely on donor eggs or a gestational carrier.
4. 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 have a child, without applying strict scrutiny or requiring Respondent to demonstrate a compelling interest achieved through the least restrictive means.

The opening brief develops these questions alongside independent state and federal liberty claims, challenges to the scope and enforceability of the disposition directives, and arguments concerning the duties spouses owe one another. It also addresses Sofiya’s proposal for an agreement under Family Code section 7613(e) concerning legal parentage. That proposal requires attention to the statute’s terms, including its requirement of a written agreement signed by all persons with a legal interest in or control over disposition of the embryos. The proposal cannot be treated as eliminating every disagreement between the parties, particularly where Mr. Borenstein’s stated objection to reproductive use extends beyond financial support.⁷

Amicus Partners

This appeal asks the Court of Appeal to apply California’s guarantee of reproductive freedom to a woman who seeks to have children through embryos that already exist. That question may interest people who disagree on other questions of reproductive law, because their different starting points can still lead them to examine whether the State should foreclose the reproductive use sought here. The Law Office of J.R. Howell welcomes amici from across the legal and philosophical spectrum:

For reproductive-rights and civil-liberties advocates. The appeal concerns whether a woman’s ability to have children through assisted reproduction may be conditioned on her former husband’s continuing consent. Sofiya challenges that condition as a sex-linked “spousal veto” that interferes with her rights to privacy and reproductive autonomy under California constitutional and statutory law. Amici can assist the court in examining how those protections apply when reproductive choice depends on infertility care rather than unassisted conception.

For pro-life and conservative groups. Sofiya seeks to preserve existing human embryos and use them to have children. The appeal therefore provides an opportunity to examine whether California’s reproductive-choice guarantee protects that decision where the alternative sought by her former spouse would destroy the embryos or place them permanently beyond her reproductive use.

For scholars of constitutional law. The appeal presents a question of first impression concerning the text, history, and scope of article I, section 1.1 and Proposition 1. It also requires consideration of the standard of scrutiny applicable to competing procreative interests and whether enforcement of private “disposition” agreements can foreclose the constitutional inquiry. Scholarship addressing those questions can help the court distinguish the parties’ private arrangements from the consequences of the judicial orders enforcing them.

Amici need not share a position on every reproductive question to assist the court here. The issue presented by this appeal is whether California’s guarantee of “reproductive freedom” protects Sofiya’s decision to have children through these embryos, and what the court must examine before entering an order that prevents her from doing so.

Amicus contributions sought

The office particularly welcomes briefs addressing the text and history of Proposition 1, the applicable standard of scrutiny, spousal vetoes, equal protection, embryo-disposition decisions from other states, the bioethics of embryo disposition, and the consequences for cancer survivors and others who depend on infertility care. These subjects bear on both the rights asserted and the practical effect of the orders under review. Amici with related interests are welcome to submit a joint brief.

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 the Law Office of J.R. Howell as counsel for Appellant Sofiya Goldshteyn and presents her position in pending litigation. The linked materials allow readers to distinguish the appellate record, the parties’ submissions, and the authorities on which the opening brief relies. Nothing on this page constitutes legal advice or an offer of representation. Each amicus is responsible for the independent views expressed in its brief.