State Courts Continue to Wrestle with Divorcing Frozen Embryo Disputes, Look to Language of Clinic Documents for Guidance

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

Colorado Appeals Court Rules Clinic Documents Left Disposition Choice to Divorce Court to Make

After ending a 12-year marriage, in which the couple had three IVF children, they could not agree on the disposition of their six remaining frozen embryos. The wife wanted to use them; the husband wanted them destroyed. They had signed two agreements with their IVF clinic related to their embryos: a “participation agreement” and a “storage consent agreement.” The first describes the embryos as a “unique form of ‘property,’” set out choices including indefinite storage for future use, donation or discard, noted that the law in this area was still developing and the importance of their having a dispositional plan should they die, separate or divorce. The court found the storage agreement addressed disposition of the embryos, but only in certain (unstated) events it found were “inapplicable.” The court acknowledged that disposition of frozen embryos was a unique issue under Colorado law, and that it would therefore look to other states for guidance, but noted that other Colorado laws make clear a human embryo is not a “person” (Colorado laws that address penalties for unlawful terminations of pregnancy and offenses against pregnant women). The outcome of the case turned on the somewhat unusual language in the clinic’s participation agreement, which essentially deferred to a divorce court to decide who would be awarded the embryos in the event of a divorce. The trial and intermediate appellate court sided with the husband, on slightly different grounds, and the case was not appealed to the Colorado Supreme Court.

The Appeals Court reviewed the case law around the country and identified what it considered to be the three main “approaches” taken by state courts: 1) contract, 2) balancing of interests, or 3) contemporaneous mutual consent. It rejected the contemporaneous mutual consent approach as unworkable and essentially giving one party veto power over the other. It adopted the contract approach where parties had entered into a valid agreement, but without such an agreement--as it found here--a balancing test was necessary. It faulted only the trial court’s attempt to apply both, saying it should not have considered the couple’s choice to discard under circumstances not involving divorce.

In adopting a contract approach, the court cited Kass v. Kass (NY 1998) and decisions from other states as to the advantages of such an approach: “it reserve[es] to the progenitors the authority to make what is in the first instance a quintessentially personal private decision,” avoids litigation in “personal matters of reproductive choice”, and “provide[s] the certainty needed for effective operation of IVF programs.” The court also noted Colorado statutes based on the model Uniform Parentage Act (UPA), which permit a spouse to withdraw consent prior to transfer, and to not be a legal parent of any child resulting from a post-divorce transfer without such consent (the UPA does not address whether one ex-spouse may use embryos against the wishes of the other, an issue that also arises under the next reported case).

Applying the contract approach, the court found the language of the disposition agreement explicitly left if to the dissolution (divorce) court to decide which party should get the embryos in the event of a divorce, with the couple’s elected choice (thaw and discard) only applicable if a court did not make such a decree (the opposite of the order in which most dispositional documents are drafted).

The court set out the dispositional agreement’s relevant language:

“In the event of divorce or dissolution of our marriage, we acknowledge that the disposition of our embryos will be part of the divorce/dissolution decree paperwork. [I]f any court…award[s] to either Husband or Wife all rights with respect to the Cyropreserved embryos to the exclusion of the other spouse, by an order of decree which is final and binding to them, the [laboratory] shall have the right to deal exclusively with him or her...In the event that the divorce/dissolution decree paperwork does not address the disposition of the embryo(s), we elect the following disposition…Thawed and discarded without undergoing any further  development for any purpose.”

The court ruled that the language both clearly deferred to the divorce court to determine disposition in its complete discretion, and that the trial court should have applied only a balancing of interests in deciding in the husband’s favor, a ruling it affirmed.

In applying that balancing test, the court found the wife’s interest in having a fourth child was less significant than the husband’s desire not to have additional offspring with the wife. It noted the balance was easier than in some cases like Davis where the wife had no children. It also accepted the propriety of the lower court’s considering the husband’s financial burden of a fourth child, even if he could be relieved of legal obligations under the UPA, as well as his “emotional and psychological well-being,” were he burdened with “a social and moral obligation” to another biological child. The lower court properly considered the financial situation of the respective parents and the possibility the husband’s financial obligations would be increased, even if only because the needs of his other three children might be impacted. The court rejected the wife’s arguments that it had applied a “best interest of the child” standard, or that Skinner v. Oklahoma, the 1942 U.S. Supreme Court case that rejected involuntary sterilization, applied because she would be deprived of having as many children as she wanted. Lastly, it rejected all her constitutional arguments, noting the couple had equal constitutional claims, and that the lower court had properly balanced them in favor of the husband.

Finally, and significantly for programs and those who draft their documentation, the court noted:

“Wife could have contracted to receive the embryos on dissolution of the marriage, but did not do so…By leaving such an important decision up to the court, the parties should have expected the court to thoroughly examine the parties’ desires, life circumstances, and financial state, as it does in balancing the interests in every permanent orders case.”

One of the important “take-aways” from the case is that both the form and the content of IVF clinic documents can be outcome determinative. The Colorado court was clear it wanted to apply a contract approach, but found the clinic’s contract did not substantively provide a clear dispositional decision upon divorce. Careful drafting of such documents to be a valid enforceable agreement under applicable law and to ensure couple’s choices are clearly elected and applicable in the event of divorce might avoid cases like Rooks, and Wilson v. Delgado, currently pending before the Georgia Supreme Court.

In RE: the Marriage of Rooks CO. Ct. Apps (Div. IV, No 15CA0990, 10/20/16; no further appeal filed).  

Appeal to Georgia Supreme Court Pending over Donor Egg Embryos

Frozen embryo disputes continue to hit the courts, this time in Georgia with two “twists”: the embryos were created with donor egg and the intended father’s sperm and Georgia has a statute, the “Option of Adoption,” explicitly allowing both embryo donation and a post-birth adoption of a child born from a donor embryo. The ex-wife is attempting to bolster her claims under that law. The lower court awarded the embryos to the husband, and the wife appealed; the case was argued before the Georgia Supreme Court in April, where a decision is pending. The court released a summary of the case and arguments.

The couple, Wendy Wilson and Rommel Delgado, were patients at Oregon Reproductive Medicine and reportedly signed a clinic form stating the embryos were joint property and that upon dissolution of marriage, a court would control the fate of the embryos. The couple had twins from two of the five resulting embryos in 2013, and the wife filed for divorce in 2014. The lower courts ruled in favor of the husband, who wanted the embryos discarded. The wife’s appeal raises two significant issues: whether as the only “progenitor,” the husband has a greater claim to the embryos or, if not, whether the reason turns on a contractual agreement; and secondly, whether Georgia Code § 19-8-40-42, the so-called “Option of Adoption” statute, which expressly allows for embryo donation and adoption of a child born following an embryo donation, was wrongly found inapplicable by the lower court.

The lower court ruled that the ex-husband would have had a greater claim to the embryos, and the right to destroy them, because he was the only genetic contributor, and there was no embryo disposition contract to the contrary. In reaching its conclusion, the lower court relied on two other states’ earlier frozen embryo decisions: 1) the 1992 Davis v. Davis decision from Tennessee, the first frozen embryo dispute in the U.S., which found for the husband where there was no written agreement or consent form (both the husband and wife were progenitors), and 2) the 2002 Litowitz v. Litowitz decision from the Washington State Supreme Court, which involved frozen embryos created with donor egg but with a contract in place between the couple and their clinic giving them equal dispositional rights, which that court found was the sole basis on which the wife’s rights to the embryos stood. The cited cases suggest the pivotal role of documentation that is both clear and legally binding as a contract under applicable state law. The parties’ respective arguments highlight the still evolving legal issues around these events, including the vulnerability of non-genetic partners and the potential impact of so-called “right to life” issues.

Wilson’s attorneys have argued that the lower court’s reliance on “genetic relatedness” (and therefore the Davis and Litowitz cases) is outdated in light of both developing technologies and family structures and “should not be the controlling factor in determining parenthood [for ART cases];” that their client’s interests are grounded in religious beliefs that would avoid destroying “the budding lives whose existence she orchestrated” and should outweigh her ex-husband’s interest in destruction which she argues is “centered on his personal dislike” of her; and that any concerns over his legal parentage responsibilities could be relinquished under the Option of Adoption law.

They argue that the law, “designates embryos as candidates for adoption,” and thus the court should make a ruling that “will allow assignment of custody based on a ‘best interests’ standard and afford these embryos every opportunity at full and fruitful lives alongside their genetic siblings, in the care of a loving, supportive mother.” Essentially, Wilson is attempting to advance, and then bolster, a now familiar “right to life” argument for embryos, by urging a mandatory application of a law that expressly allows only for voluntary adoption by recipient couples. (Though used in the U.S. legal system, ASRM has stated that the term “embryo adoption” is inaccurate and should be avoided. Ethics Committee of the American Society for Reproductive Medicine. Defining Embryo Donation: An Ethics Committee Opinion. Fertil Steril 2016; 106:56-8.)

Delgado’s attorneys are arguing first and foremost that his constitutional right not to procreate was properly ruled to be the decisive factor in the lower court’s ruling. Secondly, they argue that the court did not fail to apply the “Option of Adoption” law but found it inapplicable where their client, a progenitor, was exercising his constitutional right not to procreate, that the cited cases are not outdate, and have been followed more recently in other states, establishing precedent both for upholding his right not to procreate and for prioritizing his rights over his non-progenitor wife’s in the absence of any agreement to the contrary. His attorneys have urged the court to rule that Wilson, “having contributed no biological material and thus not being a progenitor for these pre-embryos, has no right to them whatsoever as there is no contract addressing the disposition of these pre-embryos upon the dissolution of the marriage.” 

An interesting point, not yet reported, is why the former couple’s written, signed documents with their IVF program, did not include an embryo disposition agreement instead of reportedly leaving that issue up to a court. Had such documentation been in place, the couple might then have argued over its legal significance and whether or not it constituted a binding contract under applicable law, as has played out in recent cases in California (Findley v. Lee, LS, holding there was a legal contract), and Missouri (Gadberry v. McQueen, LS April, 2017, holding the documents did not meet requirements for a contract under that state’s laws), but the nature of the claims would have been different and left less complex issues for the court to resolve.

A decision on the case, argued April 17, 2107, is pending.

Wilson v. Delgado, GA Sup.Ct (S17A0797), pending.

Challenge Filed to New Tennessee Donor Insemination Law Denying Parentage Presumption for Same-Sex Married Couples 

Four married, same-sex, pregnant female couples have challenged a new Tennessee law which would remove parental presumptions for same-sex couples. The suit was filed in May, the state has moved to dismiss, and hearings are scheduled for later this month (June). While the enacted law does not explicitly single out gay and lesbian parents, or attempt to deny parentage to all donor insemination born children, as did earlier bills (see Legally Speaking Feb. 2017), this and the earlier attempts were filed following a lesbian couple’s custody battle in that state which was widely publicized, and debates around the legislation included those over its impact on same-sex couples.

The new law requires all language in a state statute construed to have its language “natural and ordinary.” "[U]ndefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest."  As applied, a non-biological spouse would no longer be automatically deemed a parent of the child born to her wife.

Following the U.S. Supreme Court’s 2015 ruling in favor of same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), Tennessee, like the majority of states, began interpreting its pre-existing state laws related to marriage and parentage to apply equally regardless of the sex of the marital partners. Tennessee’s law follows prior Uniform Parentage Act (UPA) language closely, stating that a "child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife."

Donor insemination statutes generally state that a child born to a married woman is legally presumed to be the legal child of her husband, often with the corollary principle that the sperm donor is not the legal parent. Statutory language, and certain requirements, vary—with some states requiring physician involvement and written spousal consent to bolster the spouse’s intent to be a parent. Some state statutes relieve a sperm donor of parentage rights and responsibilities regardless of the woman’s marital status. A small number of states, including Maine, have updated their donor insemination laws to expressly include same-sex couples. Most of the states’ laws are based on a prior version of the UPA’s model legislation, developed by the National Conference of Commissioners of Uniform State Laws (NCCUSL), which is currently updating its Model UPA, in part to reflect more parity for parentage involving same-sex couples and ART usage.

The recently enacted law in Tennessee would reverse any gender-neutral presumptions, on the theory that a same-sex spouse could not have naturally been the father and therefore the marital presumption should not apply.

Despite statements from the governor and some legislators, the women’s attorney, Julia Tate-Keith, rejected any suggestion that the new law was not aimed at denying LGBT couples’ parentage rights and filed suit the day after the new law went into effect.

The Human Rights Campaign called the law “a shameful effort” to challenge marriage equality law, and its Legal Director, Sarah Warbelow, issued a statement, “Governor Haslam has chosen to put pure politics ahead of Tennessee’s women and LGBTQ people…[t]his draconian measure will open the state up to many expensive legal challenges and divert state resources to defending an unnecessary, unconstitutional measure. The Governor should be ready to answer for the fallout signing this bill will cause.”

The lawsuit, and the state’s motion to dismiss, are pending.

McKenzie, Mears, v. Haslam, Case. No. 17-443-III, Chancery Ct., Davidson County, TN (filed 5/8/17); motion to dismiss pending.

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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