After two years of attempting to conceive a child naturally, Alicia and Brendan consult a fertility specialist, Dr. Smith, with the ABC Fertility Clinic.  Dr. Smith advises Alicia and Brendan to undergo in vitro fertilization (IVF).  Prior to commencing treatment, Alicia and Brendan both sign a number of consent forms, including one entitled “Consent and Agreement for Cryopreservation.”  This form provided for cryopreservation (freezing) of any suitable excess embryos remaining after transfer to Alicia. In addition, the form required Alicia and Brendan to consider the future disposition of the embryos in a variety of circumstances, including divorce.  The form stated that “In the event we divorce, the embryos shall be dealt with as follows: . . . The embryos shall be transferred to Wife for future use by her to initiate a pregnancy.”  Alicia undergoes oocyte retrieval, her eggs are combined with Brendan’s sperm in the laboratory, and six embryos result.  Two embryos are transferred to Alicia’s uterus, and the remaining 4 are cryopreserved for future use.  Alicia fails to become pregnant.  Alicia and Brendan cannot afford another cycle of IVF at that time, so they agree to wait until they have saved enough money before attempting another cycle.  Two years pass.  In that time, the marriage deteriorates, and Alicia files for divorce.  She would like to attempt to initiate a pregnancy by thawing and transferring the remaining embryos as soon as the divorce is final.  Brendan wants the embryos destroyed.  Whose wishes will control in this situation?

Alicia and Brendan are a hypothetical couple, but they are not unique.  While few couples want to contemplate divorce, the high divorce rate makes it certain that some number of couples will eventually divorce. Some of these couples will have cryopreserved embryos and find themselves in disagreement about the appropriate disposition of those embryos.  This article will present an overview of the law governing these difficult situations.

Fertility clinics typically require couples seeking cryopreservation to sign a form (like the hypothetical one outlined above) containing an advance directive, which provides instructions for dealing with the embryos in a variety of different circumstances.  Some forms ask the couple to specify a disposition in the event of divorce, often by initialing next to standard choices that include transfer to one of the parties, donation to research, donation to other couples or individuals, or thawing and discarding of the embryos.  Other forms provide that disputes over embryos that arise in divorce will be decided by a court.  The actual language and terms of the cryopreservation agreement vary widely in ways that can be significant for the ultimate resolution of the dispute, as do the approaches taken by courts in these cases. The remainder of the article will explore how a court might decide Alicia and Brendan’s hypothetical case and include guidance for couples considering cryopreserving their embryos.

 

Background

The first case to consider the disposition of disputed embryos in a divorce was Davis v. Davis (TN 1992).  Mary Sue and Junior Davis had been through several unsuccessful courses of IVF and, at the time of their divorce, had seven cryopreserved embryos in storage.  Mary Sue wanted to implant the embryos; Junior wanted the embryos destroyed.  They had not signed any written agreement regarding disposition of the embryos.  In the absence of a prior agreement, the Tennessee Supreme Court balanced the parties’ conflicting constitutional interests in procreation—Mary Sue’s right to procreate and Junior’s right not to procreate.  The Court ultimately decided in favor of Junior’s right not to procreate, in part relying on the possibility of Mary Sue achieving parenthood through another cycle of IVF or through adoption. The Davis decision went on to say, however, that these disputes should be resolved according to the preferences of the embryos’ progenitors, if a prior agreement exists.  Only in the absence of an agreement should a court balance the parties’ interests, and in most of those cases, the party wishing to avoid procreation would prevail.

Cases That Have Enforced Prior Agreements:  The Contract Approach

To date, appellate courts in four states have expressly enforced contracts related to cryopreserved embryos disputed in a subsequent divorce.  In Kass v. Kass (1998), wife Maureen and husband Steven had five cryopreserved embryos created in connection with several failed IVF cycles.  The consent form signed at the clinic provided that disposition of the embryos in the event of divorce would be determined in a property settlement. In interpreting the agreement, the New York Court of Appeals held that cryopreservation agreements should be presumed valid and enforceable.  The agreement signed by the Kasses included a provision that called for donation to research in the event the couple could not make a decision regarding disposition, and that provision would control.  Likewise, in Marriage of Dahl (2008), an Oregon appellate court gave effect to a cryopreservation contract that provided that the wife would have decision-making authority over the embryos if the parties could not agree.  The wife wanted to destroy the embryos; the husband wanted to donate them to another couple.  In a 2006 Texas case, Roman v. Roman (2006), the parties’ positions were reversed: The husband wanted to discard the embryos; the wife wanted to implant them.  Nonetheless, the outcome was essentially the same.  The court found an agreement contained in the clinic consent form to discard unused embryos was valid and enforceable.  In a case decided by the Washington Supreme Court, Litowitz v. Litowitz (2002), the embryos had been created with the husband’s sperm and donor eggs.  The cryopreservation contract provided that disputes would be decided by the court.  It also contained a provision, agreed to by the parties, that any embryos still in storage five years after the initial date of cryopreservation would be thawed and not allowed to undergo further development.  As more than five years had passed at the time the Washington Supreme Court rendered its decision, the court ruled that pursuant to the contract, any embryos remaining in storage were to be thawed and discarded.

Cases that Have Allowed the Parties to Change Their Mind:  The Contemporaneous Consent Approach

Several other states have acknowledged the importance of agreements between the progenitors, but with a key difference.  While these cases, like those previously discussed, declare that cryopreservation contracts should be presumed enforceable, they will not enforce such agreements in disputes between the couple where one party has had a change of heart.  In other words, the agreement would likely be enforceable primarily in a dispute between the couple and the clinic. 

The New Jersey Supreme Court adopted this “contemporaneous consent” approach in the case of J.B. v. M.B. (2001).  J. B. and M.B. underwent an IVF procedure.  J.B. became pregnant and gave birth to a daughter.  Eight embryos were cryopreserved and remained in storage when J.B. sought a divorce. J.B. wanted to have the embryos discarded. M.B. wanted to use the embryos herself or donate them to another couple.  They had signed a consent form that provided that they would relinquish the embryos to the clinic’s IVF Program in the event of a marital dissolution, unless a court ordered otherwise.  The Court ruled that agreements entered into at the time of IVF would be enforced, subject to either party’s right to change his or her mind about disposition up to the point of use or destruction of any stored embryos.  As J.B. did not object to continued storage, M.B. could continue to pay the fees; otherwise the embryos would be destroyed.

The Supreme Court of Iowa took a similar approach in In re Marriage of Witten (2003).  Tamera and Trip Witten had undergone several failed embryo transfer attempts and had 17 embryos in storage when they sought to divorce.  They had signed a consent that required joint consent for release of the embryos and an exception in the event of death of a party, but the agreement did not specifically address disposition in divorce.  Tamera wanted to use the embryos to attempt to get pregnant; Tripp wanted the embryos discarded.  The Court held that where the progenitors of the embryo disagree about disposition, contemporaneous mutual consent is required.  In the absence of mutual consent, no transfer, release, use or other disposition can occur.  Hence, as a practical matter, the embryos would remain in storage indefinitely, with the party opposing destruction paying the fees.

The Supreme Judicial Court of Massachusetts resolved the issue in a somewhat different way.  In A.Z. v. B.Z. (2000), the Court refused to enforce a cryopreservation agreement that contained a provision providing the embryos would be given to the wife for implantation in the event the parties separated.  The court was skeptical that the agreement actually reflected the intent of the parties, given ambiguities in the language and the circumstances surrounding the signing of the form.  The wife had written in the disposition after the husband had signed a blank form.  More importantly, the court went on to find that even if the agreement had been unambiguous, it would not enforce a clause that would compel one provider of gametes to become a parent against his or her wishes.  Such a provision was against the public policy of New Jersey.  Hence, to the extent one party wants to use the embryos to initiate a pregnancy over the objection of the other, New Jersey would require mutual contemporaneous consent.  However, in a footnote, the court stated that it was not deciding whether agreements providing for other dispositions, such as donation to research or destruction of the embryos, might be enforceable over the present objection of one of the parties.

Disposition of Embryos Created with Donor Gametes

All of the cases discussed above, with the exception of Litowitz, involved embryos created with sperm from the husband and eggs from the wife.  Disputes over embryos created with donor gametes would likely be treated somewhat differently.  Litowitz did involve embryos created with donor eggs, but the court did not give any specific weight to that fact in deciding to enforce the contractual provision providing for destruction of the embryos.  However, the intermediate appellate court considering the case had ruled in favor of the husband.  In the court’s view, since the wife was not a genetic contributor to the embryos, she had no constitutional procreative rights at stake.  A concurring judge stated the principle even more clearly, arguing for a decision based solely on the husband’s genetic connection. 

It remains to be seen which approach courts will ultimately follow in cases where donor gametes are used.  Moreover, these cases may be complicated by the existence of contracts entered into by the intended parents with the egg donor.  The Litowitz court considered the effect of an egg donor contract that arguably restricted the use of the embryos by anyone but the couple.  However, as the egg donor contract spoke only to the disposition of the eggs, not embryos created from the eggs, the court found it inapplicable in the dispute between the husband and wife over disposition of the embryos.

Contemplating Embryo Disposition in a World of Uncertainty

As we can see, whether Alicia would prevail in her quest to use the frozen embryos or whether they would be destroyed, as Brendan wishes, is a question that would be determined very much by where they live.  If they live in a state that has adopted the contract approach, it’s possible the cryopreservation agreement would be honored.  However, any contract is subject to challenge based on a wide variety of reasons.  For example, the terms may be ambiguous or the parties may have acted under duress.  Moreover, it’s important to note that the cases that adopted the contract approach all ruled in favor of the party seeking to avoid procreation.  Hence, even in jurisdictions that presume the contracts are enforceable, it is possible a court might refuse to award embryos for use by one parent over the objection of the other.

If Alicia and Brendan live in a jurisdiction that requires mutual contemporaneous consent, if they later disagree, the embryos will remain in storage, as long as the fee is paid, or be destroyed.

If Alicia and Brendan live outside of these few jurisdictions that have addressed the question, resolution of the dispute is impossible to predict.  For this reason, couples contemplating cryopreservation should consider the following:

1. Clinics will likely require you to sign a cryopreservation agreement.  Read it carefully and discuss the options openly and thoroughly; you might well be held to those choices at a later date.

2. Although it is unclear in most places whether the agreement will determine the ultimate disposition of embryos should you and your partner disagree, you should make your choices assuming the agreement will be enforced, but not relying on that outcome. 

3. If the embryos are created in whole or in part with donor gametes, make sure that any contract with the donor comports with your wishes regarding embryo disposition and that any instructions you provide on the clinic consent form do not conflict with provisions contained in the donor contract.