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RECENT CASE LAW ON DIVISION OF FROZEN EMBRYOS IN DIVORCE PROCEEDINGS
2003 National Legal Research Group, Inc.

Introduction

For thousands if not millions of years, children have been born roughly nine months after they were conceived by the union of the father's sperm cell with the mother's egg cell. In recent years, however, scientists have learned how to remove an egg cell from the mother, unite it with a sperm cell from the father, and then cryogenically freeze the embryo. The frozen embryo can be thawed months or even years later and implanted into a uterus (not necessarily that of the genetic mother), and it is possible (although less than 50% likely) that the embryo will develop into a normal child.

Because the removal of egg cells from the mother is invasive, medical clinics commonly remove, fertilize, and freeze these cells in small groups. The frozen embryos are then thawed and implanted individually. Given modern divorce rates, it is entirely foreseeable that couples who have a small group of frozen embryos will be divorced before the implantation process is complete. Frozen embryos have therefore been added to the list of unusual types of property with which divorce courts must contend.

Volumes of commentary have been written, in both traditional law reviews and journals of medical and legal ethics, on the proper legal status of frozen embryos. Any academic discussion of this issue must almost inevitably venture into the legal status of embryos generally, and therefore must encounter the raging public and legal debate over abortion. As a result, it is almost impossible to state a non-controversial position on the subject.

In an attempt to inform the reader of the current status of the law, without raising controversial legal and ultimately moral questions, this article will cite and briefly discuss the reported American case law to date on the division of frozen embryos in divorce proceedings. The objective will be to set forth the law in the most content-neutral manner possible.

Davis v. Davis

The first American decision to consider the status of frozen embryos was Davis v. Davis, 842 S.W.2d 588 (Tenn.), on reh'g in part, 1992 WL 341632 (Tenn. 1992), cert. denied sub nom. Stowe v. Davis, 507 U.S. 911 (1993). The parties in Davis participated in a frozen embryo program, and were divorced while unimplanted frozen embryos remained. There was no written contract between the parties and the clinic which froze the embryos. The wife wished to donate the remaining embryos to a childless couple. The husband, who did not desire to have another child, wished to have the remaining embryos destroyed. The trial court held that frozen embryos are essentially children, and awarded them to the wife for implantation.

The Tennessee Supreme Court held that frozen embryos are neither property nor children, as those terms are traditionally used in divorce cases, but rather a unique type of entity with aspects of both categories:

We conclude that preembryos are not, strictly speaking, either "persons" or "property," but occupy an interim category that entitles them to special respect because of their potential for human life. It follows that any interest that Mary Sue Davis and Junior Davis have in the preembryos in this case is not a true property interest. However, they do have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law.

842 S.W.2d at 588.

The first resource for determining the fate of frozen embryos, the court held, should be an agreement between the parties:

We believe, as a starting point, that an agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors. This conclusion is in keeping with the proposition that the progenitors, having provided the gametic material giving rise to the preembryos, retain decision-making authority as to their disposition.

Id. at 597. But the court suggested that the agreement might not always be conclusive, especially when not subject to later modification:

At the same time, we recognize that life is not static, and that human emotions run particularly high when a married couple is attempting to overcome infertility problems. It follows that the parties' initial "informed consent" to IVF procedures will often not be truly informed because of the near impossibility of anticipating, emotionally and psychologically, all the turns that events may take as the IVF process unfolds. Providing that the initial agreements may later be modified by agreement will, we think, protect the parties against some of the risks they face in this regard. But, in the absence of such agreed modification, we conclude that their prior agreements should be considered binding.

Id. (court's emphasis).

Unfortunately, giving primary weight to the agreement of the parties did not help the court resolve the situation before it, as the parties in Davis had no contract. The court was therefore faced with a choice between the wife's desire to donate the embryos and the husband's desire not to have the embryos develop into children. The court found the answer in the constitutional right to privacy. That right clearly prevents undue state interference with the right to have children. See Skinner v. Oklahoma, 316 U.S. 535 (1942); Eisenstadt v. Baird, 405 U.S. 438 (1992). Davis held that, by parallel logic, the right to privacy also protects the right of an individual to choose not to have children. "For the purposes of this litigation it is sufficient to note that, whatever its ultimate constitutional boundaries, the right of procreational autonomy is composed of two rights of equal significance the right to procreate and the right to avoid procreation." 842 S.W.2d at 600. On the facts of Davis, the husband's right not to have children had more weight than the wife's right to donate the frozen embryos:

Balanced against Junior Davis's interest in avoiding parenthood is Mary Sue Davis's interest in donating the preembryos to another couple for implantation. Refusal to permit donation of the preembryos would impose on her the burden of knowing that the lengthy IVF procedures she underwent were futile, and that the preembryos to which she contributed genetic material would never become children. While this is not an insubstantial emotional burden, we can only conclude that Mary Sue Davis's interest in donation is not as significant as the interest Junior Davis has in avoiding parenthood. If she were allowed to donate these preembryos, he would face a lifetime of either wondering about his parental status or knowing about his parental status but having no control over it. He testified quite clearly that if these preembryos were brought to term he would fight for custody of his child or children. Donation, if a child came of it, would rob him twice his procreational autonomy would be defeated and his relationship with his offspring would be prohibited.

Id. at 604. Note that the court relied heavily upon the fact that the wife did not seek to have the embryos implanted in herself:

The case would be closer if Mary Sue Davis were seeking to use the preembryos herself, but only if she could not achieve parenthood by any other reasonable means. We recognize the trauma that Mary Sue has already experienced and the additional discomfort to which she would be subjected if she opts to attempt IVF again. Still, she would have a reasonable opportunity, through IVF, to try once again to achieve parenthood in all its aspects genetic, gestational, bearing, and rearing.

Id. Because the husband's decision not to have children was constitutionally protected, the court held that the medical clinic should follow its normal procedure "in dealing with" unused frozen embryos. Id. at 605.

Kass v. Kass

The next case to involve the disposition of frozen embryos was Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350 (1998). The wife in Kass wished to have the embryos implanted in her own uterus, while the husband again did not desire to become a parent. This time, however, the parties had both signed a consent form before the eggs were removed, fertilized, and frozen. The form stated:

Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction.

673 N.Y.S.2d at 352. Three weeks after signing the form, with divorce imminent, both parties signed an agreement, typed by the wife, which provided:

The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass[,] Steve Kass or anyone else will lay claim to custody of these pre-zygotes.

Id. at 353. The court agreed with Davis that an agreement between the parties should control:

Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them. . . . Indeed, parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable.

Id. at 356. The question, however, was the construction of the agreement. The husband contended that the agreement required joint consent before implantation; the wife contended otherwise. This was a pure question of contract construction, which the court found to a certain extent familiar. "The subject of this dispute may be novel but the common-law principles governing contract interpretation are not." Id. The court agreed with the husband:

The conclusion that emerges most strikingly from reviewing these consents as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears again and again throughout the lengthy documents. Words of shared understanding "we," "us" and "our" permeate the pages. The overriding choice of these parties could not be plainer: "We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law."

Id. at 357 (emphasis by the court). Given the totality of both agreements, the court held that the passing reference in the consent form to determination of legal ownership by the court was not intended to permit a court to allow implantation against the wishes of either party. The court therefore refused to permit implantation.

A.Z. v. B.Z.

Like Davis and Kass, the next case involved a wife who desired implantation of the embryos and a husband who did not wish to become a parent. A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000). Each time eggs were removed from the wife, the husband signed a blank consent form. The wife then filled in the form, stating that the embryos should be returned to the wife for implantation if the parties separated. After removal of the last group of eggs in 1991, implantation in 1992 resulted in the birth of twin daughters to the wife. The issue was the disposition of the four remaining frozen embryos.

For three reasons, the court refused to enforce the provision in the consent form that the embryos be returned to the wife:

First, the consent form's primary purpose is to explain to the donors the benefits and risks of freezing, and to record the donors' desires for disposition of the frozen preembryos at the time the form is executed in order to provide the clinic with guidance if the donors (as a unit) no longer wish to use the frozen preembryos. The form does not state, and the record does not indicate, that the husband and wife intended the consent form to act as a binding agreement between them should they later disagree as to the disposition. Rather, it appears that it was intended only to define the donors' relationship as a unit with the clinic.

Second, the consent form does not contain a duration provision. The wife sought to enforce this particular form four years after it was signed by the husband in significantly changed circumstances and over the husband's objection. In the absence of any evidence that the donors agreed on the time period during which the consent form was to govern their conduct, we cannot assume that the donors intended the consent form to govern the disposition of the frozen preembryos four years after it was executed, especially in light of the fundamental change in their relationship (i.e., divorce).

Third, the form uses the term "[s]hould we become separated" in referring to the disposition of the frozen preembryos without defining "become separated." Because this dispute arose in the context of a divorce, we cannot conclude that the consent form was intended to govern in these circumstances. Separation and divorce have distinct legal meanings.

725 N.E.2d at 1056-57. While the court found the agreement insufficiently definite, it openly stated that it would not have followed the agreement even if it had been definite:

With this said, we conclude that, even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement.

Id. at 1058-59. Again, therefore, the embryos were not implanted.

Cahill v. Cahill

The next case, Cahill v. Cahill, 757 So. 2d 465 (Ala. Civ. App. 2000), also involved an agreement. The agreement in Cahill provided:

[The wife] and [the husband] agree that all control and direction of our [frozen embryos] will be relinquished to the Physicians of the Department of Obstetrics and Gynecology under the following circumstances:

1. A dissolution of our marriage by court order.

Id. at 466. The trial court refused to award the embryos to the wife, holding under the language of the agreement that ownership appeared to revert to the medical clinic if the parties were divorced. The appellate court affirmed.

J.B. v. M.B.

The agreement at issue in the next case, J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001), was very similar to the agreement in Cahill:

I, 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.

783 A.2d at 710. The case was different, however, in that the husband wanted to donate the embryos to another couple for implantation, while the wife desired that the embryos be discarded.

The court looked first to the language of the contract, but found it to be ambiguous because the parties's agreement to relinquish control in the event of divorce did not apply if the court specified who was to control the embryos. The court distinguished Kass, finding that the language there was much less ambiguous. Readers can compare the language and draw their own conclusions; this author finds the language to be more similar than different. The court did not cite Cahill, which did not find great ambiguity in similar language.

After finding the agreement to be ambiguous, the court held that the ambiguity was irrelevant, because a contract to implant frozen embryos violated New Jersey public policy. The court explained:

We recognize that persuasive reasons exist for enforcing preembryo disposition agreements. Both the Kass and Davis decisions pointed out the benefits of enforcing agreements between the parties. . . . We also recognize that in vitro fertilization is in widespread use, and that there is a need for agreements between the participants and the clinics that perform the procedure. We believe that the better rule, and the one we adopt, is to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos.

Id. at 719 (emphasis added). The net effect of this rule is that regardless of any agreement signed by the parties, frozen embryos cannot be implanted unless both parties consent at the time of implantation. Accord A.Z. The court held only a slim window for the party desiring implantation, holding that "if there is disagreement as to disposition because one party has reconsidered his or her earlier decision, the interests of both parties must be evaluated." 783 A.2d at 719. But "ordinarily the party choosing not to become a biological parent will prevail." Id. On the facts, where the husband desired to donate the embryos and not to act as the parent himself, the court agreed with Davis that the right not to become a parent was materially stronger. The embryos were therefore not implanted.

Litowitz v. Litowitz

The final decision, Litowitz v. Litowitz, 146 Wash. 2d 514, 48 P.3d 261 (2002), is materially different from the others. The parties in Litowitz wanted to have a child, but the wife was unable to produce eggs or give birth to a child. They therefore acquired egg cells from a third party (the egg donor); fertilized them with the husband's sperm; and had the embryos frozen. One of the embryos was implanted in a surrogate mother and produced a normal child. The remaining embryos were still in storage when the parties divorced.

A contract with the egg donor provided:

All eggs produced by the Egg Donor pursuant to this Agreement shall be deemed the property of the Intended Parents and [,] as such, the Intended Parents shall have the sole right to determine the disposition of said egg(s). In no event may the Intended Parents allow any other party the use of said eggs without express written permission of the Egg Donor.

48 P.3d at 263 (emphasis added). The contract with the medical clinic required the parties to state their intention in the event that "[o]ur pre-embryos have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agrees, at our request, to extend our participation for an additional period of time." Id. at 263-64. In handwriting, the parties stated their intention "[t]hat our pre-embryos be thawed but not allowed to undergo further development." Id. at 264.

Like the trial court in Davis, the trial court in Litowitz expressly considered the best interests of the frozen embryos, and ordered the father to use his best efforts to donate the embryos to a married couple for implantation. Like the appellate court in Davis, the Washington Supreme Court reversed, basing its decision solely upon the language of the contract with the medical center. That contract provided that the embryos would not "undergo further development" after five years of preservation. More than five years passed between the date of preservation and the date of divorce. The court therefore held under the terms of the contract that the embryos could not be implanted. The court rejected the wife's attempt to assert rights under the agreement with the egg donor, holding that the agreement ceased to apply when the eggs were fertilized and became embryos. Finally, the court held that jurisdiction to reach a different result was not granted by a general provision allowing a court to determine an appropriate disposition if the parties could not agree upon one.

Conclusion

The developing case law on the legal status of frozen embryos reaches a relatively uniform result. As an incident of the constitutional right to privacy, either genetic parent has an absolute right to prevent implantation of any frozen embryo. That right is stronger than the right of the other parent to have a child, and even stronger than a contract which on its face requires implantation. It is possible that the right to bear a child might control if implantation is literally the only way in which the proponent will ever be able to have a child. But the general tone of the cases suggests that the right to veto implantation is probably close to absolute.

Without taking a position on the correctness of United States Supreme Court case law on abortion, it is worth noting that the frozen embryo case law is a logical and straightforward application of the abortion cases. The clear thrust of the Supreme Court's abortion cases is that the mother's right to privacy and control over her own body overcomes any contrary right possessed by a nonviable fetus. See Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Roe v. Wade, 410 U.S. 113 (1973). Likewise, the frozen embryo cases hold that the objecting parent's right not to procreate an incident of the right to privacy overcomes any contrary right possessed by the other parent or by the embryo. So long as the Supreme Court continues to hold that the right to privacy defeats the rights of a nonviable fetus, state courts will probably continue to hold that the right to privacy defeats the rights of a frozen embryo.

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