1. Is the constitutional right to reproduce superseded by contract when a person loses their biological reproductive capability and/or is strictly held by intent?
2. Litowitz v. Litowitz, 48 P.3d 261 (2002)
2.1. Facts
2.1.1. Parties
2.1.1.1. David J. Litowitz, Respondent
2.1.1.2. Becky M. Litowitz, Petitioner
2.1.1.3. Guardian ad litem
2.1.1.3.1. Steve Downing
2.1.1.4. Jennifer Yocom
2.1.1.4.1. Egg donor for IVF procedure
2.1.1.5. National Womens Law Center (NWLC)
2.1.1.5.1. As amicus curiae, the NWLC argued before the Supreme Court
2.1.2. What happened
2.1.2.1. In 1980, while still dating, Becky Litowitz received a hysterectomy briefly following the birth of their first son Jacob
2.1.2.1.1. The procedure left Becky with irreversible biological changes that prevent her from ovulating eggs and bearing a child
2.1.2.2. Becky Litowitz and David Litowitz were married on February 27, 1982
2.1.2.2.1. David adopted Becky's two children
2.1.2.3. Around the year 1995, Becky and David mutually agreed to have another child through in vitro fertilization (IVF)
2.1.2.4. Because of the current laws of Washington against commercial surrogacy, Becky and David contacted the Center for Surrogate Parenting in Beverly Hills, California
2.1.2.5. Litowitz's selected Jennifer Yocom for egg donation and Tammy McColley for surrogacy and carrying the child to term
2.1.2.5.1. Davids sperm and Jennifers eggs manifested into 5 embryos
2.1.2.5.2. Tammy became pregnant after one embryo was implanted into her uterus
2.1.2.6. Becky and David entered into a donation arrangement and contract with Jennifer and her husband on March 20 and March 21, 1996, respectively
2.1.2.6.1. Dispositional authority based on agreement that: "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 to use said eggs without express written permission of the Egg Donor."
2.1.2.7. Becky and David entered into a contract with the Loma Linda Center for Fertility and In Vitro Fertilization with consent for pre-embryo cryptopreservation
2.1.2.7.1. Contract language provided disposition of the embryos based on the following four provisions: (1) The death of the surviving spouse or in the event of our simultaneous death. (2) In the event we mutually withdraw our consent for participation in the cryopreservation program. (3) Our pre-embryos have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agrees, at our *264 request, to extend our participation for an additional period of time (4) The Center ceases its in vitro fertilization and cryopreservation program.
2.1.2.8. Tammy gave birth to their daughter Micah on January 25, 1997
2.1.2.8.1. Prior to Micah's birth, Becky and David became physically separated
2.1.2.9. Becky was served divorce papers on her way to witness Micah's birth
2.1.2.10. On October 21, 1998, David indicated that he would like to put the pre-embryos up for adoption during the trial court proceedings
2.1.2.10.1. 2. There must be a meeting of the minds
2.1.3. Procedural history
2.1.3.1. On December 11, 1998 Thurston County Superior Court ruled in favor of the Respondent in an action awarding two of the cryopreserved embryos based on "the best interest of the child" and his intention to place the pre-embryos for adoption
2.1.3.1.1. The ruling Judge also issued a restraining order on the Petitioner, not to alter the status of the pre-embryos
2.1.3.2. Court of Appeals affirmed the decision of the trial court using a guardian ad litem concluding that the contract established did not require him to continue the family plan
2.1.3.2.1. Upheld the right not to procreate of the respondent
2.1.3.3. The Supreme Court of Washington reversed the decision of the Trial Court and Court of Appeals based on the (3) provision, such that on June 13, 2002 the cryopreservation had exceeded five years
2.1.3.3.1. Ruled 8-1 to uphold the contract for disposition through sanctioning a thawing if the pre-embryos were still in existence
2.2. Issue before the Court
2.2.1. Whether the Court of Appeals was correct in affirming the decision of the Trial Court based on "the best interest of the child" through a dissolution proposal by the Respondent
2.2.2. Does the contractual agreement, entered into by both Litowitz parties, supersede the constitutional right to procreate?
2.3. Rule of Law
2.3.1. Contract law
2.3.1.1. Elements of a contract
2.3.1.1.1. 1. Both parties must be legally competent to enter into the contract
2.3.1.1.2. 3. Consideration must be given
2.3.1.1.3. 4. The purpose of the contract must be legal
2.3.1.2. The Supreme Court recognized the provision of the storage consent contract which stated that disposition of the pre-embryos would take place in the event that 5 years passed.
2.3.1.3. Although the donation agreement was consider contractual, the egg donors disposition request was not acknowledged because the products (eggs) were no longer attached to any rights due to the genetic component changes in the sex gametes
2.4. Analysis
2.4.1. The Respondent argument
2.4.1.1. David Litowitz argues that nowhere in their storage consent contract does it allow disposition of embryos for use by the other third party donor
2.4.1.1.1. He also argues that the contract does not supersede constitutional right not to reproduce, and that forcing him to uphold a contract to add to his previous family was unjustified
2.4.2. The Petitioner argument
2.4.2.1. Because she was recognized as a party in the egg donor agreement and storage consent contract, Becky claims to have the equal constitutional right of reproduction as the other party within the contract
2.4.2.1.1. Egg donor provides her the right to determine disposition of the eggs
2.4.2.1.2. Further argued that the court of appeals was inconsistent in that it held the contract as uncontrollable in the parties dispute.
2.4.2.2. Petitioner claims that the court was justified in the term 'child' and that she has a contractual right to custody of the future child
2.4.3. Court's anaylsis of substantive rights
2.4.3.1. Both parties cannot agree to mutually decide on the disposition of the pre-embryos stored under their consent contract
2.4.3.2. Trial Court
2.4.3.2.1. Judge Stone found that because the Respondent had created a newly formed two parent home in which the future child would be best protected, his rights to decide on adoptive measures superceded the rights of the Petitioner
2.4.3.3. Court of Appeals
2.4.3.3.1. Upheld the constitutional right of the Respondent to not continue their family plan with the addition of another child
2.4.3.4. Supreme Court of Washington
2.4.3.4.1. The courts do no recognize the rights of the egg donor to make any future decisions on the disposition of the pre-embryos.
2.4.3.4.2. The cryopreservation contract controlled the future disposition of the pre-embryos based on the four provisions previously agreed upon by both parties
2.5. Conclusion
2.5.1. Contractual rights were upheld through the contract entered into by both parties with the Loma Linda Center for Fertility and In Vitro Fertilization
2.5.1.1. Both parties established provisions for disposition based on four significant events
2.5.1.2. Supreme Court decided to uphold the basis of a five year limitation and stated that "both parties had long ago agreed to this eventuality,"
2.5.1.2.1. Neither party achieved their desired result/decision
2.6. Impact
2.6.1. Roman v. Roman, 1d (2006)
2.6.1.1. After marrying and having years of unsuccessful pregnancies, the Appellee and Appellant sought IVF treatment and established a contract for consent disposition of embryos
2.6.1.1.1. One of the provisions of the contract stated that: "If we are divorced or either of us files for divorce while any of our frozen embryos are still in the program, we hereby authorize and direct, jointly and individually, that one of the following actions be taken: The frozen embryo(s) shall be discarded
2.6.2. In the Re Marriage of Witten, 91 N.Y.2d 554 672 N.W.2d 768 (2003)
2.6.2.1. Following several unsuccessful attempts of IVF embryo transfer, the Wittens agreed to store the 17 remaining pre-embryos at a medical facility
2.6.2.1.1. After having both parties sign a storage agreement stating that the embryos won't be transferred, released of disposed of without signed approval from both parties
2.6.2.1.2. Following their divorce, the Plaintiff sought custody of the 17 pre-embryos and the Defendant did not want her to use them
2.7. Importance
2.7.1. Like other forms of consent, decision making on future actions surrounding biological tissue requires significant detail and specific contractual language.
2.7.1.1. As the development of ART (Assisted Reproductive Technology) becomes more advanced, stages of embryonic development may require further insight and agreements for parties engaged in IVF treatment
2.7.1.2. Health care professionals can apply contract history, such as this, into the facility consent forms and create more autonomy for entering into contracts with parties who may need further information prior to consent
2.8. Influence
2.8.1. Hospitals and other health care facilities have applied similar merits of consent to various scenarios involving consent over biological tissue.
2.8.1.1. Provisions for genetic testing or organ/tissue donation must include law application from IVF cases. In order for hospitals to remain compliant and avoid breach of contract issues or medical negligence, biological connections and informed consent are now more comprehensive
2.8.2. The influence and development of stem cell research has justified the need to re-examine consent measures for histology. Tissue or cells donated to science may or may not fall subject to the merits of raw materials and their change into downstream products
2.8.2.1. As was mentioned in the case, the egg donor lost all autonomy and rights to her donated eggs once they became fertilized. Likewise, as cells stored in research facilities become future tumors or medical conditions, donors are subjected to the terms of a highly specific consent agreement