1. Rule of Law
1.1. What is in the best interest of the "child"?
1.2. Right to privacy
1.2.1. Right not to procreate
1.3. Contractual Law
1.3.1. What is or is not stipulated in the contract(s)?
1.3.2. Express and Implied contracts
2. Issue
2.1. Whether the trial court and the court of appeals were correct in their findings that the two frozen embryos should be awarded to Respondent David Litowitz in a parenting plan in a dissolution action
2.2. Whether the motion by Respondent David J. Litowitz to submit additional evidence for review should be granted
2.2.1. Mrs. Litowitz's alleged drug use and her alleged hiring of a third party to kill Mr. Litowitz
3. Analysis
3.1. Mr. Litowitz's Stance
3.1.1. Desired to put the remaining preembryos up for adoption
3.1.2. Claimed that Becky Litowitz was a drug user and attempted to hire someone to have him killed
3.1.3. Argued that Mrs. Litowitz's egg donor argument didn't address disposition of the embryos in the event of a divorce
3.2. Mrs. Litowitz's Stance
3.2.1. Desired to implant the remaining preembryos in a surrogate mother and bring them to term.so she could parent
3.2.2. Attempted to assert her rights under the agreement with the egg donor, holding that the agreement ceased to apply when the eggs were fertilized and became embryos.
3.2.2.1. Per the egg donor contract, both she and Mr. Litowitz had equal rights to the embryos
3.2.3. Claimed that the decision of the Court of Appeals is internally inconsistent because it held that the contract did not control the dispute between the intended parents while it could be used to extinguish the rights of the egg donor.
3.2.3.1. Asserts the Court of Appeals extinguished the rights of the egg donor when it allowed Respondent the right to transfer the preembryos to a third party without the egg donor's consent as required by the egg donor contract.
3.2.3.1.1. Steve Downing, the court appointed guardian
3.3. Trial Courts Ruling
3.3.1. Trial court awarded the preembryos to David Litowitz, the biological father, determining it would be in the best interest of the child. Mr. Litowitz's desire was to find a suitable couple, mother and father, to adopt the embryos/future child/children
3.3.1.1. “My decision on the preembryo has very little to do with property, very little to do with constitutional rights, everything to do with the benefit of the child.”
3.3.2. Found that it would be an undue burden or hardship for the child to be the product of a divorce
3.3.2.1. Better for the child to grow up in a two-parent household
3.3.3. Found that it would not be in the best interest of the child to live in a single parent household
3.3.4. Found that the advanced age of the Respondent and Petitioner were concerning and would not be in the best interest of the child concerning parentage
3.3.4.1. Claimed that Mr. and Mrs. Litowitz's were old enough to be grandparents
3.3.4.1.1. Is that allowed? - Ageism?
3.3.5. On December 11, 1998, Judge Stone also issued an order staying the order on the preembryos and issued a restraining order on Mrs. Litowitz, preventing her from removing or altering the status of the preembryos until the final judgmets, including appeals
3.4. Appellate Court Ruling
3.4.1. Affrimed the ruling of the trial court, determining that the trial court was correct in awarding ownership of the embryos to David Litowitz.
3.4.1.1. Concluded the contracts signed in California by David Litowitz and Becky Litowitz did not require Mr. Litowitz to continue with their family plan to have another child and that Mr. Litowitz's right not to procreate compelled the court to award the preembryos to him.
3.5. Supreme Court Ruling
3.5.1. Reversed the decision of the trial court and court of appeals
3.5.1.1. Basic contract law: Both parties unequivocally chose the option to have their preembryos thawed but not allowed to undergo further development after five years
4. Conclusion
4.1. Trial court found in favor of Respondent, David Litowitz, granting him possession of the two remaining frozen embryos (preembryos)
4.2. Court of Appeals affirmed the decision of the trial court, determining the decision to grant David Litowitz the frozen embryos was correct
4.3. The Supreme Court reversed the decision of the trial court and the court of appeals
4.3.1. Their reversal was solely based on the language of the contracts signed with Loma Linda
4.3.1.1. The contract provided that the embryos would not "undergo further development" after five years of preservation and more than five years had passed since the date of the cryopreservation of the embryos and the date of the divorce
4.3.1.2. Concerning the disposition of the preembryos, if there is dispute, then the two parties prior agreement concerning disposition should be carried out.
4.3.1.2.1. Davis v. Davis
5. Impact
5.1. In Re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003)
5.1.1. Frozen embryo case in which the two parties disagreed on the use or disposal of a number of frozen embryos
5.1.2. Dissolution of marriage proceedings in which previously frozen embryos are a factor
5.1.3. The appellate court determined that the trial court was correct in granting neither the appellee, Trip Witten, nor the appellant, Tamera Witten, the ability to use or dispose of the embryos without the consent of the other party
5.2. Roman v. Roman, 193 S.W.3d 40 (Tex.App.-Hous. (1 Dist.) 2006)
5.2.1. The Texas court of appeals reversed the decision of the trial court, disagreeing with that court's decision that the preembryos were community property and should be awarded to Augusta Roman for implementation.
5.2.2. Frozen embryo case in which a divorced couple, Randy Roman and Augusta Roman, sought different outcomes regarding the embryos.
5.2.3. Randy Roman wanted the embryos destroyed, and Augusta Roman wished to implant them, desiring to have biological children
5.2.4. The court of appeals declared that the written IVF consent form the Romans had signed would govern the outcome of the cryopreserved preembryos, indicating termination of the embryos upon the couple's divorce
6. Influence
6.1. Courts typically have a tendency to look to the contract and aim to enforce the explicit determinations within them.
6.2. In vintro and frozen embryo cases have given certain implications to abortion cases
6.2.1. A genetic parent's right to non parentage (destroying of the embroyos) seems to parallel a woman's right to privacy and choice regarding her body - often surpassing any "contrary right possessed by a nonviable fetus"
7. Importance
7.1. Healthcare Professionals should be cognizant of the sensitivity of in vitro and embryo cases.
7.1.1. They need to be mindful in the drafting and execution of their contracts and should even consider having a discussion with each couple specifically regarding the status of the embryos in the unfortunate event of a divorce
7.1.2. These professionals should take care to have the most explicit, clearly defined, all-encompassing contracts possible
8. Facts
8.1. Parties
8.1.1. David J. Litowitz, ex-husband of respondant, Becky Litowitz, and genetic sperm donor of frozen embryos
8.1.2. Becky M. Litowitz, ex-wife of petitioner, David Litowitz; non-genetic parentage to frozen embryos
8.2. What Happened
8.2.1. July 5, 1989:: David Litowitz and Becky Litowitz had a child together, Jacob Litowitz
8.2.1.1. Shortly after the birth of Jacob, Mrs. Litowitz had a hysterectomy
8.2.2. February 27, 1982: David Litowitz and Becky Litowitz married
8.2.2.1. During this time, David Litowitz adopted Becky's two children, of whom she bore from a previous marriage
8.2.3. Mr. and Mrs. Litowitz decided to have another child via in vitro fertilization
8.2.4. Mr. and Mrs. Litozitz consulted the Center for Surrogate Parenting, Loma Linda University Gynecology and Obstetrics Medical Group, located in Loma Linda, California
8.2.5. Mr. and Mrs. Litowitz signed two contracts with the Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California.
8.2.5.1. March 25, 1996: Mr. and Mrs. Litowitz signed a consent and authorization form for preembryo cryopreservation (freezing) following in vitro fertilization
8.2.5.2. March 25, 1996: Mr. and Mrs. Litowitz signed an agreement and consent for cryogenic preservation (short term)
8.2.5.3. Contract included the following: "We have been advised and understand that the legal status of the frozen preembryos has not been fully determined. In this regard, we acknowledge that we have been advised to seek independent legal counsel concerning our respective rights with regard to each preembryo placed in cryopreservation. We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our pre-embryos will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our pre-embryos, we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our preembryos. "
8.2.5.4. Upon the occurrence of one of these ouctomes: A. The death of the surviving spouse or in the event of our simultaneous death. B. In the event we mutually withdraw our consent for participation in the cryopreservation program. C. Our 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. D. The Center ceases its in vitro fertilization and cryopreservation program. Mr. and Mrs. Litowitz mutually decided and wrote in the contract "That our pre-embryos be thawed but not allowed to undergo further development."
8.2.5.4.1. Marriage dissolution was not included in the contract
8.2.6. Egg donar contract was signed in Beverly Hills, California
8.2.6.1. March 20, 1996: Becky M. Litowitz signed the contract
8.2.6.2. March 21, 1996: David J. Litowitz signed the contract
8.2.6.3. April 1, 1996: egg donor J.Y. and her husband E.Y. signed the contract
8.2.6.4. The contract defined Becky Litowitz as the "Intended Mother" and David Litowitz as the "Natural Father." The "Intended Mother" and "Natural Father" were further defined as the "Intended Parents."
8.2.6.4.1. Contract included the following: "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."
8.2.7. 5 preembryos were created with eggs received from an egg donor
8.2.7.1. Donor eggs were fertilized by Mr. Litowitz's sperm
8.2.7.2. 3 of the 5 preembryos were implanted into a surrogate mother, resulting in a "conception"
8.2.8. David Litowitz and Becky Litowitz separated and entered into dissolution of marriage proceedings in the Pierce County Superior Court
8.2.8.1. October 21, 1998: David Litowitz indicated his wish to put the remaining preembryos up for adoption
8.2.8.2. October 26, 1998: Becky Litowitz indicated her wish to implant the remaining preembryos in a surrogate mother and bring them to term.
8.2.9. January 25, 1997: Surrogate mother gave birth to baby girl, "M"
8.2.10. The 2 remaining preembryos were frozen, or cryopreserved and stored in the Loma Linda clinic
8.2.11. December 11, 1998:: the trial court awarded the preembryos to Respondent David J. Litowitz based upon the "best interest of the child."
8.3. Procedural History
8.3.1. David Litowitz and Becky Litowitz entered into dissolution of marriage proceedings prior to the birth of their daughter through surrogate on January 25, 1997
8.3.2. October 21, 1998: David Litowitz indicated his wish to put the remaining preembryos up for adoption
8.3.3. October 26, 1998: Becky Litowitz indicated her wish to implant the remaining preembryos in a surrogate mother and bring them to term.
8.3.4. December 11, 1998:: the trial court, Hon. Waldo F. Stone, awarded the preembryos to Respondent David J. Litowitz based upon the "best interest of the child."
8.3.5. January 7, 1998: Trial court, under a stipulation, appointed Steve Downing to serve as guardian ad litem for the two preembryos.
8.3.6. Becky filed an appeal, and the Court of Appeals concluded the contracts signed by Petitioner and Respondent in California did not require Respondent to continue with their family plan to have another child and that Respondent's right not to procreate compelled the court to award the preembryos to him.
8.3.7. November 16, 2000: Becky M. Litowitz sought review by the Supreme Court
8.3.7.1. April 12, 2001: Supreme Court granted this review
8.3.8. May 8, 2001: David Litowitz filed a motion to allow additional evidence for review
8.3.8.1. Mr. Litowitz claimed that this additonal evidence was related to a recent discovery of Becky Litowitz's drug use that was discovered after the final decree of dissolution and parenting plan which resulted in modification of the parenting plan designating David Litowitz as the primary residential parent for baby girl M
8.3.8.2. Additional evidence was alleged to be in support of a report that Becky Litowitz attempted to murder Mr. Litowitz by paying a third party to kill him