1. Rule of Law
1.1. The court had to decide who should receive the embryos. Due to the contract that the Litowitz parties signed basic contractual law was applied to the case.
1.1.1. When the embryos were created and subsequently frozen the parties signed a cryopreservation agreement provided by the Loma Linda Clinic that stated "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 that 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 pre-embryos".
1.1.1.1. The cryopreservation agreement also stated that the Loma Linda Clinic was to thaw out the pre-embryos and allow them to expire after five years from the date of signature if no other arrangements had been made.
1.1.1.1.1. The contract was signed and dated March 25, 1996 with the five year term ending on March 24, 2001.
2. Facts
2.1. Parties
2.1.1. Becky M. Litowitz
2.1.1.1. "intended parent"
2.1.2. David J. Litowitz
2.1.2.1. sperm donor, "intended parent"
2.2. What's It All About
2.2.1. In 1982, parties were married with one biological child together and two children from Mrs. Litowitz's prior marriage.
2.2.2. Unable to have additional children due to a hysterectomy, in 1996, the parties consulted with the Center for Surrogate Parenting at Loma Linda University Gynecology and Obstetrics Medical Group for in vitro fertilization.
2.2.3. In 1996, Litowitz's entered into a contract in Beverly Hills with the egg donor designating Ms. Litowitz as the "intended mother" and Mr. Litowitz as the "natural father" and combined would be the "intended parents".
2.2.3.1. Contract stated all eggs produced by the egg donor would be deemed the property of the "intended parents" and they would have sole right to the eggs disposition. It also stated in no event may the intended parents allow any other party the use of the eggs without express written permission of the egg donor.
2.2.4. 2 contracts were signed with Loma Linda. One for the in vitro fertilization and the other for the cryogenic preservation.
2.2.4.1. Contract stated any decision regarding the future of the pre-embryos must be made by mutual consent of the Litowitz's. If mutual consent couldn't be reached, they must petition the court for guidance on the pre-embryos disposition.
2.2.4.2. The contract also provided guidance to Loma Linda upon the occurrence the Litowitz's (both) no longer want the pre-embryos in 4 distinct scenarios.
2.2.4.2.1. Death of spouse(s), Withdrawal of consent, cease of cryopreservation program, 5 years of cryopreservation (unless contract is extended), or
2.2.5. 5 pre-embryos were created through the combination of donor eggs and Mr. Litowitz sperm. 3 of those pre-embryos were implanted into a surrogate mother.
2.2.5.1. Remaining 2 pre-embryos were cryopreserved and stored in the clinic for future use.
2.2.5.1.1. After 5 years, the pre-embryos may be thawed and prevented from further development, pursuant to the cryopreservation contract with Loma Linda
2.2.6. The surrogate mother delivered the Litowitz's 4th child in 1997. The couple had since separated prior to the birth.
2.2.6.1. Disposition of the pre-embryos is not agreed upon
2.3. Procedural History
2.3.1. Trial
2.3.1.1. During the divorce proceedings, Mr. Litowitz requested the pre-embryos be put up for adoption. Mrs. Litowitz opposed and wished for them to be implanted into a surrogate mother and brought to term.
2.3.1.1.1. Awarded the pre-embryos to the husband based upon the “best interest of the child.”
2.3.2. Appeal
2.3.2.1. In November, 2000, Becky Litowitz sought review of the Court of Appeals which was granted on April 2001.
2.3.2.1.1. Appeals court rules the egg donor contract is not applicable
2.3.2.1.2. On Dec 11, 1998, Judge Waldo Stone awarded the pre-embryos to Mr. Litowitz based upon it being the "best interest of the child". He based this on his concern if the pre embryo was brought to term, the child would be raised by a single parent or would be brought up in the turmoil of a child of divorced parents.
2.3.2.1.3. Mrs. Litowitz is not a a progenitor, her rights are defined by contract and are equal to Mr. Litowitz
2.3.3. Appeal to Supreme Court of Washington
2.3.3.1. Mr. Litowitz motions for admission of additional evidence regarding charachter and drug issues with Mrs. Litowitz
2.3.3.1.1. Denied
2.3.3.2. Reversed trial court decision, eggs should be thawed and discarded
3. Issue
3.1. Whether the Court of Appeals was correct when it affirmed a Superior Court award of two cryopreserved preembryos to Respondent David J. Litowitz in a parenting plan in a dissolution action
3.2. Whether a motion by Respondent David J. Litowitz to submit additional evidence on review should be granted.
4. Application
4.1. Contract law
4.1.1. Supreme Court of Washington (highest court hearing this case) focused on the contract/consent that was signed by the respondent and petitioner
4.1.1.1. If agreement is not reached between the two, they are to seek court for instruction for appropriate disposition of pre-embryos.
4.1.1.1.1. Neither party contended this and relied on the contract for their rights
4.1.1.2. Contract provides for center thaw embryos at the earliest of any one of 4 conditions are met
4.1.1.2.1. At the time of final decision, the pre-embryos had been in cryopreservation for more than 5 years
4.1.2. Egg donor contract
4.1.2.1. Pre-embryos are fertilized eggs (no longer eggs) and the egg donor contract does not apply
4.1.3. Supreme Court of Washington
4.1.3.1. Delivered an instruction that neither parties asked for, based on their assessment of situation and present contract.
4.1.3.1.1. Pre-embryos may no longer exist
4.1.3.1.2. Should be allowed to thaw but not develop
4.2. Consitutional rights
4.2.1. Petitioner claimed she has constitutional right to custody and companionship of a child
4.2.1.1. Insufficient argument
4.3. Preembryo a "child"
4.3.1. Supreme Court of Washington declined to define/ tackle this
4.4. Progenitor
4.4.1. This case was unique from prior similar cases in that only one of the couple was a progenitor (in this case, the respondent)
4.4.1.1. At least some believed party with genetic contribution to the pre-embryo should have more authority.
4.4.1.1.1. Under contract, both Mr and Mrs. Litowitz have equal rights to the pre-embryos as the "intended parents"
4.5. Best interest
4.5.1. Trial court ruled in favor of the respondent arguing that it is in the best interest of future child
4.5.1.1. Thought that child is better off living with an intact family (husband and wife present) vs a single mother
4.5.1.1.1. Trial court neglected to apply previously signed contrct
4.5.2. Petition for additional evidence
4.5.2.1. Respondent wished to have additional evidence for review, claiming that petitioner used drugs and tried to have him killed
4.5.2.1.1. No sufficient grounds to consider his request. Denied.
4.5.2.2. Can be related to best interest, as the claim seem to affect the petitioner's fitness to parent.
4.5.3. Supreme court interprets contract, does not apply this logic to the case
5. Conclusion
5.1. Reversed Court of Appeals and Trial Court decisions
5.1.1. While the decision about what to do with the pre-embryos was based on contractual law this case brought up several questions in regards to how to define what a pre-embryo is (a child?) and what types of law should apply to the decision.
5.1.1.1. Mr. Litowitz was awarded custody of the pre-embryos on the basis that Mrs. Litowitz was not a biological parent to the pre-embryo as the eggs were supplied by a donor. This decision was upheld by the Court of Appeals
5.1.1.1.1. The Washington Supreme Court ruled that the pre-embryos should be thawed out and allowed to expire due to the dispute about what to do with the pre-embryos was not resolved within the five years provided by the Cryopreservation Agreement. One judge did file a dissenting opinion stating that the five year limit should not apply because of judicial delay regarding a decision.