Chloe Knue, Associate Member, University of Cincinnati Law Review
In vitro fertilization (“IVF”) is a long and rigorous process. First, it “requires a woman to undergo a series or hormonal injections to stimulate the production of [eggs] . . . The medication causes the ovaries to release multiple egg cells during a menstrual cycle rather than the single egg normally produced.” After the injection period, a physician will harvest all of the eggs. These eggs are fertilized in a laboratory using the sperm of a contributing male. “[T]he preembryos are either returned to the woman’s uterus for implantation or cryopreserved at a temperature of -196 C and stored for possible future use.” The IVF process is successfully completed when one of the eggs is retained by the body—resulting in a pregnancy.
It is often the case that a married couple will embark on this journey to parenthood together, but if they divorce, a dispute sometimes arises over the remaining pre-embryos. When this happens, courts must adjudicate: (1) what happens to the pre-embryos and (2) who decides. Section II will outline the three different tests adopted by state courts to analyze who retains control of the pre-embryos. Section III will advocate for the contractual approach that was most recently adopted by the Connecticut Supreme Court in Bilbao v. Goodwin. Section IV will conclude that the contractual approach is most desirable because it upholds justified expectations and preserves the agreement of the parties.
Judges have created three different tests for determining the fate of pre-embryos: (1) the contractual approach, (2) the balancing approach, and (3) the contemporaneous mutual consent approach. The contractual approach, which is the majority rule, was adopted by New York in Kass v. Kass. In Kass, Mr. and Mrs. Kass enrolled in the IVF program while they were married.At the onset, the parties were asked to create a signed writing. In the writing, Mr. and Mrs. Kass agreed have any unused pre-embryos donated for scientific research in the event of a disagreement. After their divorce, Mrs. Kass sought to have the pre-embryos implanted; whereas, Mr. Kass wanted the contract to be enforced. The court agreed with Mr. Kass that the contract should be enforced. Thus, the pre-embryos were donated to science. It reasoned:
[I]t [is] particularly important that courts seek to honor the parties’ expressions of choice, made before disputes erupt with the parties’ over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors—not the State and not the courts—who by their prior directive make this deeply personal life choice.
Because there was a signed writing, the court did not have to decide the fate of the pre-embryos in the absence of an agreement. “[M]ost courts [in contractual approach jurisdictions] use the balancing approach as a second step, . . . after it is determined that no enforceable agreement between the progenitors exists . . .”
However, “New Jersey has adopted [the balancing] approach as the first and only step in resolving disputes over the disposition of pre-embryos upon divorce.” In J.B. v. M.B., the facts were the same as Kass except the relevant contract provision stated: “‘J.B. (patient), and M.B. (partner), agree that all control, direction, and ownership of our tissues will be relinquished to the IVF program under the following circumstances: / 1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues. . .’” (emphasis added). The court interpreted this provision as a grant of authority to the courts. But even in the absence of such a provision, the court expressly rejected the contractual approach. It analogized to other types of contracts that are disfavored in New Jersey, each dealing with “enter[ing] into or terminat[ing] familial relationships.” The court proceeded to weigh the father’s interest not to procreate against the mother’s interest in procreation. It ultimately found that the former outweighed the latter. It reasoned, “J.B.’s right not to procreate may be lost through attempted use or through donation of the preembryos. Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions.” Therefore, the court ordered that the pre-embryos be destroyed.
The final approach which has only been adopted by the Iowa Supreme Court is the contemporaneous mutual consent approach. In Re Marriage of Witten involved a female plaintiff who wanted to use the pre-embryos and a male defendant who opposed her use. Regardless of any writing to the contrary, the court issued a bright-line rule that the only agreement that matters is the current one. If they did agree, the parties agreement would be honored. If they did not agree, the pre-embryos would remain in cryopreservation indefinitely. The court reasoned, that for “‘decisions about intensely emotional matters, where people act more on the basis of feeling and instinct than rational deliberation,’ it may ‘be impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.’” Based on this rationale, the court was inclined to give either party a veto—which is this case was successfully exercised by the defendant.
The latest court to weigh in on the split amongst state courts is Connecticut. In an opinion officially released on November 5, 2019, the Connecticut Supreme Court adopted the contractual approach. In Bilbao, the contract expressly provided for disposition in the event of a divorce. But when the event came to fruition, the defendant argued “that he should be permitted to change his mind.” The court disagreed based in part on the practical benefits of early decision-making. According to the court, contracts provide an added layer of “certainty” in the emotional IVF process and “decrease[ ] the likelihood of litigation.”
It is noteworthy that none of the courts held in favor of forced procreation regardless of the test employed. Neither the facts in the New York nor Connecticut case involved a contract purporting to be an agreement to procreate. The New Jersey court weighed the interest not to procreate more heavily than an interest in procreation. Iowa gave both parties an option to veto—effectively blocking any attempt by the opponent to procreate. This begs the question: does it really matter which test is adopted? Or, is each test simply a different means to the same end; barring procreation when one party dissents. In each case, whether by contract enforcement, interest balancing, or veto—the party that opposed procreation always prevailed. It seems, therefore, that the essential question is not what test to employ, but instead, where does the right come from—contract law, public policy, or the parties’current state of mind?
Because the disputed material has the potential to become human life, it is best protected by the contractual approach. In jurisdictions that have adopted either the balancing approach or the contemporaneous mutual consent approach, judges have critiqued the contractual approach by arguing that it treats pre-embryos as property rather than genetic material. This argument seems to rely on the premise that most contracts deal with property. This is true, but maybe it is true because contracts are the most effective way for parties to ensure that their valuables—things like their home, assets, and business—are protected. It only makes sense that our intangible valuables, like the potential for human life, are protected the same way—by binding, enforceable contracts. Contracts prevent emotions from getting the best of either party in the moment.
When the contractual approach is not adopted, it thwarts a couple’s ability to make a meaningful decision together prior to beginning the IVF process. Although the New Jersey court was opposed to a contract of this nature, it was content with the government making the decision for the parties. But it is inadequate for judges to substitute their judgment for the judgment of the parties who as a married couple crafted a legitimate agreement, after consultation with a physician, and donated their genetic material in reliance. Societal values as well as and judges’ values change. For that reason, there is no certainty that courts that have adopted the balancing approach will continue to balance the interests of parties the same way over time. Not only is it in the interest of certainty that the contractual approach be adopted, but courts should also recognize that societal values may not always be in accord with the personal values of the parties. Parties should be empowered to go against the grain and make a decision that aligns with their personal values. It is also too easy for a scorned spouse to act in bad faith under the contemporaneous mutual consent approach. Parties have the opportunity to negotiate prior to the IVF process and human beings act with more reason and civility prior to a dispute—especially a dispute as monumental and emotional as a divorce. For example, imagine that you and your partner enter into an agreement to donate any remaining pre-embryos to science. But after the divorce, your spouse exercises his or her veto and takes the position that the embryos should be destroyed. This keeps you and your spouse in emotional limbo and ongoing conflict until an agreement is reached—arguably in bad faith. This dispute could continue on indefinitely, and the pre-embryos, that you and your ex-partner created, could remain in existence forever. One of the fundamental principles of the American judicial system is that parties are entitled to some resolution; no resolution, under the contemporaneous mutual consent approach is in tension with this ideal.
In reality, there appears to be little to no real practical consequence of the differing tests unless the parties dispute whether the pre-embryos should be donated to science, preserved indefinitely, or destroyed, because in the end, none of the courts will force either party to become a biological parent against his or her will. However, the New Jersey court left open the possibility that under the balancing approach, a right to procreate could outweigh the right not to procreate. This circumstance would arise, for example, if a party’s only opportunity to become a parent was by use of the embryos. Pre-embryo jurisprudent would be better served and more consistent by adhering to the contractual approach.
J.B. v. M.B., 783 A.2d 707, 709 (N.J. 2001) (citing The American Heritage Stedman’s Medical Dictionary at 578 (1995)).
Kass v. Kass, 696 N.E.2d 174, 175 (N.Y. 1998) (“If the procedure succeeds, an embryo will attach itself to the uterine wall, differentiate and develop into a fetus.”).
Bilbao v. Goodwin, SC 20078, 2019 WL 5607809, (Conn. Nov. 5, 2019).
In re Marriage of Witten, 672 N.W.2d 768, 774 (Iowa 2003).
Id. at 776.
Kass, 696 N.E.2d at 175.
Id. at 176.
Id. at 177.
Id. at 182.
Id. at 178.
Id. at 180.
Bilbao, 2019 WL 5607809 at 4 (citing In re Marriage of Rooks, 429 P.3d 579, 593 (Colo. 2018)).
Id. at 3 (citing J.B., 783 A.2d at 707).
J.B., 783 A.2d at 710.
Id. at 713-15.
Id. at 717-19.
Id. at 717 (citing J.B. v. M.B., 331 N.J.Super. 223, 751 A.2d 613 (2000)) (“New Jersey has, by statute, abolished the cause of action for breach of contract to marry.”) (citing N.J.S.A. 2A:23-1) (“Private placement adoptions are disfavored, . . .”(citing Sees v. Baber, 74, N.J. 201, 217, 377 A.2d 628 (1977)).
Id. at 716-17. (quoting Davis v. Davis, 842 S.W.2d 588, 589 (Tenn. 1992)).
Id. at 717.
Id. (citing Patricia A. Martin & Martin L. Lagod, The Human Preembryo, the Progenitors, and the State: Toward a Dynamic Theory of Status, Rights, and Research Policy, 5 High Tech. L.J. 257, 290 (1990).
Id. at 720.
Bilbao, 2019 WL 5607809 at 4.
In re Marriage of Witten, 672 N.W.2d at 772-73.
Id. at 780-81.
Id. at 783 (“If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction.”) (citing Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 112 (1999)).
Id. at 777 (quoting Coleman, 84 Minn. L.Rev. at 98).
Id. at 783; Bilbao, 2019 WL 5607809 at 4 (“it ‘gives on party a de facto veto over the other party by avoiding any resolution until the issue is eventually mooted by the passage of time[.]”) (quoting In re Marriage of Rooks, 429 P.3d at 589).
Bilbao, 2019 WL 5607809 at 5.
Id. at 1.
Id. at 8.
Id. at 5.
Id. (citing Kass, 696 N.E.2d at 180).
In re Marriage of Witten, 672 N.W.2d at 778 (Although [the contemporaneous mutual consent] model precludes one party’s use of the embryos to have children over the objection of the other party, the outcome under the contractual approach and the balancing test would generally be the same.”).
Id. at 781 (“Whether embryos are viewed as having life or simply has having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements.”).
Id. at 779 (“Public policy concerns similar to those that prompt courts to refrain from enforcement of contracts addressing reproductive choice demand even more strongly that we not substitute the courts as decision makers in this highly emotional and person area. Nonetheless, that is exactly what happens under the decisional framework based on the balancing test because the court must weigh the relative interests of the parties in deciding the disposition of embryos when the parties cannot agree.”) (citing J.B., 783 A.2d at 719).
J.B., 783 A.2d at 716 (“The court held that the scales ‘[o]rdinarily’ would tip in favor of the right not to procreate if the opposing party could become a parent through other reasonable means.”) (quoting Davis, 842 S.W.2d at 604);
Id. at 720 (“We express no opinion in respect of a case in which a party who has become infertile seeks use of stores preembryos against the wishes of his or her partner, noting only that the possibility of adoption also may be a consideration, . . .”).