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Yours or Mine?

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By Melissa B. Brisman, Esq. and Nancy M. Hartzband, Esq.

a broken heartCouples may want to think about their cyropreserved (frozen) embryos, to be sure that they are on “the same page” and that their  intentions for future use and disposition have been  addressed in a written and signed document.

It’s hard enough for divorcing couples to reach an agreement over the custody of children born to the marriage.  Imagine the difficulty in determining the custody of potential children as a result of embryos, created from the egg and sperm of a divorcing couple?  Because couples have turned to the legal system to consider the status of the cryopreserved embryos, U.S. Courts have had no choice but to confront the competing interests of couples, who created embryos during happier times. Within the judicial system, embryos are considered neither children nor property but are afforded special respect because of their potential to become human life.

Typically, fertility clinics require couples seeking cryopreservation to consider future disposition of the embryos under a variety of circumstances, including separation and divorce.  The clinics request that the couple complete and sign an agreement or consent form specifying instructions for disposition of their cryopreserved embryos.

But what happens if there is no such document?

Consider these facts:  A husband and wife had been through several unsuccessful in vitro fertilization (“IVF”) cycles, after which one spouse chooses to file for divorce. Along with deciding who gets the house, they now have to decide what to do with seven cryopreserved embryos which remain in storage at their fertility clinic, and there is no written agreement or consent form on file with their clinic.

Essentially, these were the facts presented to the Tennessee Supreme Court in Davis v. Davis *1. Even though no longer married, the wife wanted to keep the embryos and donate them to another couple for reproductive purposes  The husband did not want any part of that plan, preferring to have the embryos destroyed.  Because there was no written arrangement in place, the Tennessee Court tried to strike a balance between the husband’s and wife’s opposing interests in procreation.  The Tennessee Court sided with the husband, reasoning that there were other means in which the wife’s plan could be achieved, namely through IVF cycles, or through participation in the adoption process.  However, the Tennessee Court noted that had there been a prior written agreement, the remaining embryos would have been disposed of in accordance with the couple’s instructions at the time it was signed.

If there is an agreement in place, can the parties expect that it will be enforced?

In at least four states, appellate courts have enforced prior agreements regarding the disposition of cyropreserved embryos, when challenged in a divorce action.   In the New York case of Kass v. Kass *2 a husband and wife had five cryopreserved embryos created in connection with a number of failed IVF cycles. While married, they executed a written agreement, which stated that in the event of divorce, the remaining embryos would be used for research by the IVF clinic where they had been patients. Pursuant to their divorce, the couple also negotiated and executed a property settlement, which outlined the distribution of marital assets and restated the parties’ intention that the cyropreserved embryos be used for research, with neither of them retaining custody of the embryos. After the divorce, the wife had second thoughts and commenced an action to negate the prior agreements so that she could obtain custody of the embryos for her own use.  Although successful at the trial court level, on appeal, it was ultimately decided that the husband and wife had clearly expressed their intentions for disposition of the embryos both prior to and at the time of the divorce. Essentially, the higher court concluded that the husband’s desire not to procreate outweighed the wife’s right to procreate.  (Note* The appellate court ruled on the basis of contract law, and therefore did not address the larger issues related to male and female procreative rights. It also did not recognize the embryos as “persons” for purposes of constitutional arguments.)

Similarly, in Marriage of Dahl *3, an Oregon appellate court gave effect to a cryopreservation agreement that granted the wife decision making authority if she and her husband could not agree to disposition of the embryos they had created.  The wife wanted to destroy the embryos, while the husband wanted to donate them to another couple. In a Texas 2006 case, Roman v. Roman*4, the position of the spouses was reversed,  but the result the same---- the court upheld the agreement signed by the couple and according to the wife’s wishes, the embryos were destroyed.

Finally, in a Washington case, Litowitz v. Litowitz, *5, embryos had been created with the husband’s sperm and donor eggs. An agreement for disposition of the cryopreserved embryos was in place, and stated that any embryos still in storage five years after the initial date of cryproeservaton would be thawed, without further development. Once again, the agreement was upheld, and since five years had passed by the time the case was decided, the remaining embryos were thawed and discarded.

What if there is an agreement in place, but circumstances have prompted a change of heart by one of the parties?  Do courts ever recognize or allow a party to change his or her mind regarding disposition of the embryos? The answer is yes, however but only if a court can find that “contemporaneous mutual consent” is present. This approach is similar to the contractual approach discussed above, in that the court first looks to whether the disputing parties have an agreement in place expressing their intentions.  Despite the agreement, the court will consider a person’s current or contemporaneous wishes, values, and beliefs if he or she has changed their mind since signing the agreement.  However, practically speaking, and as a matter of public policy, the court is unlikely to force someone to become a parent against their wishes. In order to disregard the terms of the agreement and allow use of the embryos for procreation purposes, both parties would have had to change their minds and mutually decide to reject the agreement.

The New Jersey Supreme Court adopted a “contemporaneous mutual consent” approach in the case of J.B. v. M.V.*6.   The couple underwent an IVF procedure, and J.B. became pregnant and gave birth to a daughter. The remaining eight cryopreserved embryos were in storage, when J.B. filed for divorce. J.B. wanted the embryos destroyed, while M.V. wanted to use the embryos or donate them to another couple. An agreement between the couple stated that in the event of a divorce, or a court order directing otherwise, the couple would relinquish custody of any remaining embryos to their clinic’s IVF program. The New Jersey Court found that the agreement entered into at the time of the IVF procedure was enforceable, subject to either party’s right to change his or her mind about disposition, but only so far as use or destruction by the IVF clinic of any stored embryos. Consequently, as J.B. did not object to continued storage, (only use by M.V. or donation to third parties for reproductive purposes), the embryos were not transferred to the clinic’s program, but remained in storage as long as M.V. continued paying the associated storage fees.

The Supreme Court of Iowa took a similar approach in In re Marriage of Witten * 7 wherein the couple had undergone several failed embryo transfer attempts and had seventeen embryos in storage at the time they decided to file for divorce. The wife wanted to have the embryos implanted in her uterus, but her husband wanted them destroyed.  Their signed agreement required joint consent for release of the embryos, and set forth an exception if either of them died, but was silent as to what would happen if the couple divorced.  The Court held that where there was disagreement about disposition, “contemporaneous mutual consent” is needed to override the agreement.  Without that mutual consent, no transfer, release, use or other disposition is possible. Practically, this meant that the embryos stayed in storage, with the wife, who opposed destruction, responsible for storage fees.

While neither the New Jersey nor Iowa court enforced the respective agreements by requiring that custody of the embryos be transferred to the IVF clinics, each upheld the party’s right not to procreate.

 The State of Massachusetts resolved the issue somewhat differently.   In A.Z. v. B.Z *8, the Court refused to enforce a cryopreservation agreement that gave custody to the wife for implantation should the parties separate. This case was unusual though because the court was not convinced that the agreement reflected the intent of the parties, as there were ambiguities in the language and several questions surrounding its execution. However, the Court ruled that even if the agreement had been clear and unambiguous, it would not enforce a clause that would compel an individual to become a parent against his or her wishes.

Legal precedent over the disposition of cyropreserved embryos is evolving ever so slowly, yet certain judicial tendencies have emerged. Clearly, embryos hold a distinct and unique status in the law. If there is an agreement in place regarding disposition, and a dispute arises, a court will look to the terms of the agreement to resolve the conflict, provided that enforcement of the agreement does not result in procreation over one of the spouse’s wishes.  In the absence of an agreement, a court will look to an individual’s right to privacy, and the person seeking to avoid future reproductive use of the embryos will likely prevail.   Without question, the judicial system is being asked to resolve very difficult and intimate conflicts, and has been upholding the intentions and terms set forth in agreements, as long as parentage is not being forced, as to do so would be against public policy.

Couples seeking to avoid judicial interference, wherein one party is inevitably displeased with the outcome, are best to discuss their intentions with one another, before emotions rule and other divorce related issues cause them to lose perspective. It is essential to seek the advice and expertise of a reproductive lawyer, at the time of crypopreservation, rather than when conflict is past the point of resolution. An experienced reproductive attorney can counsel and guide a couple through the process, as well as draft and review the document necessary to reflect their wishes.

 *References

 1. 842 S. W. 2d 588 (Tenn.1992)

 2. 696 N.E. 2d (N.Y. 1998)

 3. 222 Or. App 572 (Oregon 2008)

 4.  193 S.W. 3d 40 (Texas 2006)

 5. 48 P.3d 261 (Wash.2002)

 6. 783 A.2d 707 (N.J. 2001)

 7.  672.N.W. 2d 768 (Iowa 2003)

 8.  725 N.E.2d 1051 (Mass. 2000)

Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession.  Ms. Brisman’s experience and qualifications are unparalleled.  She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania.  Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption.  In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Nancy M. Hartzband is an attorney licensed to practice law in New York and New Jersey, and is a graduate of Fordham University School of Law. Prior to becoming an associate in Ms. Brisman’s firm, she was a matrimonial law attorney and mediator.  Ms. Hartzband is a member of the New Jersey Association of Professional Mediators.

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