1. Impact/Influence
1.1. Often the "right to parent" is discussed in court; this case highlights "right not to parent"
1.2. Importance of informed consent, particularly in health settings
1.2.1. Importance of establishing specifics and agreements prior to start of process regarding the possible dissolution of relationship between the parties involved
1.3. Helps to establish and better define the role of the court in personal matters
2. Importance
2.1. Cases citing Lotiwitz v. Litowitz
2.1.1. Kass vs. Kass
2.1.1.1. Both parties progenitors; one party wanted to bring embryos to term, other wanted to donate to research per the terms of the informed consent signed at the beginning of the IVF process
2.1.1.1.1. Court upheld original consent outlining that any unused embryos would be donated to science
2.1.2. J.B vs. M.B.
2.1.2.1. Both parties progenitors; one party wanted to bring embryos to term, other did not
2.1.2.1.1. Written prior agreement between parties regarding the disposition of embryos was overruled
2.1.2.1.2. Determined that it infringed on the fundament right not to parent
3. Facts
3.1. Parties
3.1.1. Becky Litowitz (Plaintiff)
3.1.2. David Litowitz (Defendant)
3.2. What Happened
3.2.1. Mr. and Mrs. Litowitz were married in 1982 and desired for the possibility of children
3.2.1.1. Mrs. Litowitz had had hysterectomy and could no longer have children
3.2.1.1.1. The couple decided to use IVF - five embryos were created from an egg donor and Mr. Litowitz's sperm
3.2.2. Mr. and Mrs. Litowitz divorced in 1996
3.2.2.1. Mr. Litowitz asked court to put remaining two cryopreserved embryos up for adoption
3.2.2.2. Mrs. Litowitz asked court to allow her to bring the embryos to term as her own children
3.2.2.3. Terms of cryopreservation contract stated that "...any decision made regarding the disposition of the embryos must be by mutual consent..."
3.3. Procedural History
3.3.1. Pierce County Superior Court
3.3.1.1. Ruled in favor of Mr. Litowitz on the basis of best interest of the child reasoning
3.3.1.1.1. Later reduced to court order
3.3.1.2. Ruled Mr. Litowitz was ordered to use his "best efforts" to have children adopted into two person family homes outside the state of Washington
3.3.2. Court of Appeals
3.3.2.1. Mrs. Litowitz appealed Pierce County ruling
3.3.2.1.1. Court of Appeals held that the egg donor contract and cryopreservation does not imply that Mrs. Litowitz could choose to have the children on her own and put Mr. Litowitz in an unwanted parenting role after separation of the couple...
3.3.3. Supreme Court
3.3.3.1. Mrs. Litowitz appealed Court of Appeals ruling
3.3.3.1.1. Supreme Court held that under the cryopreservation contract, Mr. & Mrs. Litowitz need instruction from to the court for guidance regarding what to do with the embryos in the case of marriage dissolution if they could not first come to a mutual decision
4. Issue Before the Court
4.1. Whether the Supreme Court was correct in affirming that Mr. Litowitz had constitutional right to two embryos for execution of adoption plan
4.2. Whether Mr. Litowitz must provide additional evidence
4.3. Whether the existing terms of the cryopreservation contract supercede the rights of biological parent
5. Application
5.1. Contract Law
5.1.1. Egg Donor Contract
5.1.1.1. All eggs must be used by those in party to the contract; the donor does not have rights to the eggs unless the parties in the contract were to transfer ownership of the eggs to an outside party; in this instance, egg donor must give consent
5.1.1.1.1. Mrs. Litowitz asserted that by virtue of this contract, she had the same constitutional right to the eggs as Mr. Litowitz
5.1.2. Cryopreservation Contract
5.1.2.1. Explicitly outlined that if there was no mutual decision within 5 years, courts must be consulted for instruction
5.1.2.1.1. Contract must be interpreted in terms of intent
5.1.2.1.2. Supreme Court ruled that per the contract, no mutual decision had been reached and therefore it was not appropriate to implant the embryos neither for adoption nor for Mrs. Litowitz's desire to parent
6. Conclusion
6.1. Decisions of Pierce County and Court of Appeals were reversed
6.1.1. Supreme Court ruled the embryos should be allowed to expire due the fact that no mutual decision could be reached within five years (terms of the original cryopreservation contract signed by both parties)
6.1.1.1. Neither party had petitioned for this outcome
7. Rule of Law
7.1. Contract Law
7.1.1. Implied
7.1.1.1. In Fact
7.1.1.1.1. Common understanding of parties based on conduct is considered a contract
7.1.1.2. In Law
7.1.1.2.1. Court-determined existence of contract following performance/non-perfomance to determine if parties can collect for services performed/not performed
7.1.2. Express
7.1.2.1. Terms: offer, acceptance of offer, consideration, mutual assent, capacity and legality