Dan and Diane marry and want to have children. Unfortunately, the couple discovers they have fertility issues. In order to increase their chances of having a child, they go through in vitro fertilization (IVF). The doctors give Diane hormones to retrieve as many eggs as possible and, therefore, create as many embryos as possible. It works, and they have nine viable embryos. Two embryos are transferred to Diane. Unfortunately, she does not get pregnant. Their relationship begins to deteriorate and, before they try another transfer, they split up. Diane files for divorce, and they manage to resolve all of the issues except one: What happens to the seven viable embryos remaining?
June 01, 2016
Embryo Disposition upon Separation or Divorce
The lawyers representing Dan and Diane may not have even known about the embryos when the case was filed. Infertility is a profoundly private experience for many people. Clients will sometimes not tell their attorneys about unused frozen embryos unless they are specifically asked about them. But what is the court going to do with these embryos? Are they property? Are they persons? Is there another category? Is the issue eventually going to be moot? How long can the embryos be stored and still be capable of producing a child?
Every time a couple or a single person goes through IVF in order to have a child, embryos are created. This is true whether the couple is married, unmarried, or same-sex, or whether the individual is a single person trying to become a parent through assisted reproduction. In the vast majority of cases, excess embryos are created, which are not immediately used. Fertility clinics across the United States are reporting a steady increase in IVF cycles, which means more embryos are being created each year. The most recent statistics from the American Society for Reproductive Medicine (ASRM) estimate that at least 600,000 frozen embryos are currently in storage in the United States.1 (These are the numbers reported to the CDC from reporting fertility clinics. Many professionals in the field believe the number is more than one million.) Frozen (cryopreserved) embryos can survive and be viable for a very long time. There is at least one case in the United States of frozen embryos that were stored for 20 years, then transferred and a child was born.2
As of this writing, there have been fewer than a dozen cases decided by appellate courts in the United States in which a court was asked what to do with cryopreserved embryos when the couple could not agree. In each of these cases, one person wanted to use the embryos to conceive children and the other did not. For 20 years, the clear trend in these cases was for courts to find a way to prevent embryos from being used to conceive children, against the wishes of one of the parties. However, two recent cases have presented compelling circumstances in which the courts have held in favor of a woman wanting to use the embryos against the wishes of her former partner. Are these cases governed by principles of contract? Principles of equity? Constitutional law? Public policy concerns? Answer: All of the above.
In 1992’s Davis v. Davis,3 the first case to deal with this specific issue, the Supreme Court of Tennessee held that in the absence of an express agreement between the parties, frozen embryos should be awarded based on a balancing of the parties’ interests. “Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question.”4 The court found that each of the parties had an equal constitutional right to procreational autonomy governing their interest in the embryos.5 The court held that the embryos were not persons, but that they were property entitled to a special respect as the result of their potential for life.6 Finally, the court opined that if there had been an express agreement governing the disposition of the embryos in the event of a divorce, a court should give effect to the parties’ intent expressed by that agreement.7
When our hypothetical Dan and Diane went through IVF treatment, they signed agreements with their fertility clinic. These agreements were almost inevitably informed consent forms, created by the fertility clinic for use in every IVF case. These forms were not constructed to define Dan’s and Diane’s rights and obligations toward each other. Their principal purpose was to define the rights and obligations of the patients vis-à-vis the fertility clinic. Nonetheless, clinics have learned their lesson since Davis. These consent forms now usually have at least one page giving the parties choices as to what to do with frozen embryos in the event the parties separate. Typically, the choices are to check a box that provides something like: (1) the wife/woman/patient determines what happens to the embryos; (2) the husband/man/partner determines what happens to the embryos; (3) the embryos will be donated for research; or (4) the embryos will be disposed of by the clinic. Sometimes the choices are more creative, such as dividing vials of embryos between the parties or requiring both parties to agree on the disposition of the embryos at the time of the disposition. If Dan and Diane are typical, they barely paid attention to the consent forms. It would be very unusual for Dan and Diane to have had an attorney look at these forms, and virtually unheard of for Dan and Diane to each have been represented by separate counsel who could explain to them the potential lifelong implications of the boxes they quickly checked in the informed consents.
The Davis case has become a lodestar in the jurisprudence of embryo disposition. Davis is quoted, although not necessarily followed, in virtually every subsequent case involving disputes over frozen embryos. For 20 years, every case decided by a court of record, using varying legal theories, prevented the person wishing to use frozen embryos from doing so against the wishes of the (former) spouse or partner who did not want to have a child. Since Davis, courts have essentially used three different models to reach this same result.
Enforcement of the Contract
Four cases, from different states, have held that unambiguous provisions in IVF consent forms should be enforced as written. The consent forms in two of these cases provided that embryos should be destroyed in the event of separation or divorce.8 The form in another case provided that in the event the parties were unable to agree on the disposition of the embryos, they would be donated for research to be determined by the IVF program.9
The fourth case, Litowitz v. Litowitz from the Supreme Court of Washington,10 contained an interesting twist—the embryos were created from the husband’s sperm and an egg donor. The court held that the wife had an equal right to determine the fate of the embryos, despite her lack of genetic connection.11 Nonetheless, the court upheld the provisions of the informed consents signed by the couple which provided that if the couple couldn’t give specific direction to the IVF program within five years, the embryos would be “thawed out and not allowed to undergo further development,”12 preventing the wife from unilaterally using them to bear a child herself. The lesson of these cases is that unambiguous language of the consents will be enforced, if that language prevents one of the parties from using the embryos (to conceive a child) against the wishes of the other party.
Public Policy and Other Considerations
Bucking the trend of enforcing the agreement are a handful of states that have either considered cases where there is no agreement to enforce or disregarded the agreement in favor of other considerations. The New Jersey Supreme Court followed the central analysis of the Davis case from Tennessee, but placed more emphasis on constitutional rights, holding that in the absence of a clear and binding agreement, the court would not violate the wife’s fundamental right not to procreate by forcing her to become a genetic parent against her will.13 In a relative outlier case, the Massachusetts Supreme Judicial Court held that a contract specifying that any unused embryos be given to the wife for use in the event of “separation” was unenforceable. That court concluded, “[a]s a matter of public policy, . . . forced procreation is not an area amenable to judicial enforcement.”14
The Iowa Supreme Court used a different analysis in In re Marriage of Witten to reach the same result as Massachusetts.15 The court held that it was against public policy to enforce a prior agreement between a couple who no longer agreed about their future family and reproductive choices.16 The court invoked the principle of “contemporaneous mutual consent,” holding that cryopreserved embryos would be stored indefinitely until the parties reached an agreement about what to do with them.17 The court rejected the wife’s “best interest of the child” argument, holding that the principles of the best interest standard are intended to assure a child already born the opportunity for the best physical and emotional development.18 Iowa is unique in relying on the “contemporaneous mutual consent” principle, but New Jersey had previously noted it with approval in dicta.19
Cases Allowing Use of Frozen Embryos
In two recent cases, Reber v. Reiss20 and Szafranski v. Dunston,21 intermediate appellate courts have ruled that a woman can use frozen embryos to have children, against the wishes of the man whose gametes were also used to create the embryos. In Reber, the Pennsylvania court found that the balancing of interests test was the appropriate test, and further found a compelling circumstance that did not exist in all of the previous reported appellate decisions: after treatment for cancer, the wife had no ability to procreate biologically without the use of the disputed embryos, which had been created prior to the treatment.22 The Szafranski case also presented a similar uniquely compelling circumstance. The ex-girlfriend in that case received a cancer diagnosis and the treatment was likely to render her infertile. She and her boyfriend agreed to go through IVF together for the specific purpose of creating embryos to allow the girlfriend to attempt to have children from the embryos. The Illinois appellate court held that they had entered into an enforceable oral agreement, and that her interest in the use of the embryos was greater than his interest in preventing their use.23
Do these two cases represent a trend away from the assumption that courts will not force a person to become a genetic parent against his or her wishes? Or are they limited to their special circumstances? In both Reber and Szafranski, the women wanted to use embryos created because the couples foresaw that the woman would soon have no other means of achieving biological parenthood. In both cases, there was no signed agreement to unambiguously provide for what would happen to the embryos in the event the parties didn’t agree in the future.
- Persons or Property?
Louisiana and New Mexico both have statutes explicitly providing that embryos are persons, and requiring that all embryos be transferred or stored until they are donated to another family.24 Whether these statutes are constitutional under Roe v. Wade and its progeny is unclear, but, as of this writing, no reported case in a court of record has held that an embryo is a person. Davis held that embryos were property deserving of special respect. The New York Court of Appeals and the Court of Appeals of Arizona have held that frozen embryos are not persons for constitutional purposes.25 A federal district court in Virginia has held that frozen embryos are “property” subject to an action for recovery under a bailment theory.26 If courts begin to find that frozen embryos are persons, the entire line of cases beginning with Davis may be called into question.
Current Cases
Far from settled law, these issues continue to play out in the media. In a San Francisco case, Dr. Mimi Lee sought to use frozen embryos she created with her husband. Dr. Lee had been diagnosed with cancer and, at age 46, was unlikely to be able to have children biologically if she was not allowed to use the embryos. The Superior Court of California nonetheless ruled that the embryos would have to be thawed and destroyed, as provided in their IVF agreement.27 That decision was not appealed and is now a final judgment.
The actress Sofia Vergara and her former fiancé created embryos when they were together, for the purpose of having children together. They split up, and Vergara’s former fiancé sued in the Superior Court of California seeking the right to use the embryos, claiming that he was coerced into agreeing to discard the embryos in the event of the dissolution of their relationship. That case is pending.28
In a 2015 case, the Circuit Court of St. Louis County ruled that frozen embryos were property, in spite of the Missouri statute declaring, among other things, that life begins at conception.29 The court in that case, citing Witten, awarded the frozen embryos jointly to the husband and wife and held, further, that neither of them could use, convey, or dispose of the embryos without the written consent of the other. That case is on appeal in the Eastern District of Missouri.30 The appellant’s position is that frozen embryos are children under Missouri law, imbued with the same rights and privileges as any breathing, sentient human being. The potential implications of that case are wide-ranging and dramatic. Pro-life groups have filed amicus briefs supporting the proposition that embryos are children and deserve the rights and protections of any other children. Medical groups have filed briefs standing for the proposition that embryos are not persons.
Conclusion
What are the respective lawyers for Dan and Diane supposed to tell them, other than nothing is certain? The lessons to be gleaned from the prior cases are as follows: If an agreement has been signed that prevents one party from using the embryos without the consent of the other party, the agreement will most likely be enforced. If the IVF agreement provides that one party may use the embryos without the consent of the other party, that might be enforced—but it might not; it will likely depend on the particular circumstances of the case and the jurisdiction. If there is no unambiguous agreement, the interests of the parties will be balanced. If the person who wants to use the embryos has other reasonable means of having biological children, that person will probably not be allowed to use the embryos against the wishes of the other person. The court might use public policy grounds, constitutional grounds, contract principles, and principles of equity to determine the fate of the parties and the embryos.
One thing is certain: This is an issue that cries out for responsible legislation. The millions of couples undergoing fertility treatments (as well as the physicians and healthcare professionals) deserve to know the answer to these questions before they spend years in litigation trying to find out.
Endnotes
1. Embryo Adoption, Off. of Population Aff., http://www.hhs.gov/opa/about-opa-and-initiatives/embryo-adoption (last visited Oct. 7, 2016).
2. Donna Dowling-Lacey et al., Live Birth from a Frozen-Thawed Pronuclear Stage Embryo Almost 20 Years after Its Cryopreservation, 95 Fertility & Sterility 1120 (2011).
3. 842 S.W.2d 588 (Tenn. 1992).
4. Id. at 604.
5. Id. at 600–01.
6. Id. at 597.
7. Id. at 604.
8. In re Marriage of Dahl, 194 P.3d 834, 840 (Or. Ct. App. 2008); Roman v. Roman, 193 S.W.3d 40, 55 (Tex. Ct. App. 2006).
9. Kass v. Kass, 696 N.E.2d 174, 182 (N.Y. 1998).
10. 48 P.3d 261 (Wash. 2002) (en banc).
11. Id. at 267.
12. Id. at 271.
13. J.B. v. M.B., 783 A.2d 707, 717 (N.J. 2001) (“We will not force J.B. to become a biological parent against her will.”).
14. A.Z. v. B.Z., 725 N.E.2d 1051, 1057–58 (Mass. 2000).
15. 672 N.W.2d 768 (Iowa 2003).
16. Id. at 782.
17. Id. at 774.
18. Id. at 775.
19. J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001).
20. 42 A.3d 1131 (Pa. Super. Ct. 2012).
21. 34 N.E.3d 1132 (Ill. App. Ct. 2015).
22. 42 A.3d at 1136–37.
23. Szafranski, 34 N.E.3d at 1152–53, 1162.
24. La. Rev. Stat. Ann. §§ 9:121 et seq.; N.M. Stat. Ann. §§ 24-9A-1 et seq.
25. Jeter v. Mayo Clinic Ariz., 121 P.3d 1256 (Ariz. Ct. App. 2005); Kass v. Kass, 696 N.E.2d 174, 182 (N.Y. 1998).
26. York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989).
27. In re Marriage of Findley, No. FDI-13-780539 (Cal. Super. Ct. Jan. 11, 2016).
28. Belinda Robinson, Sofia Vergara and Ex-Fiance Nick Loeb Are One Step Closer to Going to Trial over Frozen Embryos after He Triumphs in Latest Hearing, Daily Mail (Oct. 28, 2015), http://www.dailymail.co.uk/news/article-3294080/Sof-Vergara-Nick-Loeb-battling-frozen-embryos.html.
29. Mo. Rev. Stat. § 1.205.
30. McQueen-Gadberry v. Gadberry, No. ED103138 (E.D. Mo. argued June 1, 2016). The author represents the respondent, Justin Gadberry. As of this writing, the decision is pending.