1. Impact of decision
1.1. Roman v. Roman, 193 S.W.3d 40 (Tex.App.-Hous. (1 Dist) 2006)
1.1.1. Conclusion
1.1.1.1. Embryos agreement between former husband and wife which provided that frozen embryos were to be discarded in the event of divorce was valid and enforceable.
1.2. In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003)
1.2.1. Conclusion
1.2.1.1. If no agreement can be reached between the parties, the frozen embryos cannot be used regardless of what a prior written disposition agreement states.
2. Importance
2.1. Establishes the role of the courts in these private decisions when there is a dispute over disposition or no contract exists.
2.1.1. Disposition agreements entered into at the time of IVF was commenced are enforceable but if after the divorce the parties disagree as to the disposition, then the party wishing to avoid procreation should ordinarily prevail.
2.2. Reaffirmed responsibility of IVF clinics to craft their informed consents in a way that is comprehensive and considers the possible dissolution of the relationship between parties.
2.3. Reaffirms that the 'right to not procreate' is more important than the 'right to procreate'.
3. Influence
3.1. Artificial Reproductive Technology Litigation
3.1.1. Artificial Reproductive Technology has been very helpful to infertile couples but it involves managing many people and relationships . Failing interpersonal relationships has led to rising litigation ranging from failing to abide by agreements to disputes surrounding parenthood and determining child’s best interest in custody issues.
3.1.1.1. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family.
3.1.1.1.1. Couples should discuss the legal implications of their decisions with an experienced lawyer before the fact, so that in case of separation they are prepared to deal with the legal and ethical challenges presented by their situation.
3.1.1.1.2. There is a general reluctance to consider potential disputes that may arise as a result of dissolution of the marriage, much like prenuptial agreements these ex ante contracts are not considered.
3.2. Informed Consent by IVF Clinics
3.2.1. In another Supreme Court case regarding preembryos that cited Litowitz, the trial court and appeals court agreed that "agreements entered into at the time in vitro fertilization is commenced are enforceable and binding, subject to the right of either party to change his or her mind regarding disposition of embryos" In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003)
3.2.2. The incorporation of written agreements and consent processes from the beginning of IVF treatments are important to determine what will happen should the couple, at a later point, disagree on the disposition of unused embryos.
3.2.2.1. Comprehensive contracts can be a preventative measure to having the courts decide the dispute.
4. Facts
4.1. Parties
4.1.1. Plaintiff Becky Litowitz
4.1.2. Defendant David Litowitz
4.2. What happened
4.2.1. Dispute over disposition of pre-embryos in marriage dissolution
4.2.1.1. Mr. and Mrs. Litowitz married in 1982 at which time they already had one biological child together and two children from a prior marriage of Mrs. Litowitz. Mrs. Litowitz was unable to have further children because of a hysterectomy after the birth of her third child.
4.2.1.2. In 1996, the couple consulted with the Center for Surrogate Parenting, Loma Linda University Gynecology and Obstetrics Medical Group to have another child by in vitro fertilization. Five pre-embryos were created from the combination of donor eggs and Mr. Litowitz’ sperm. Three of the pre-embryos were implanted in a surrogate mother and the remaining two pre-embryos were cryopreserved for possible future use. The Litowitz’ fourth child was born to the surrogate mother in 1997, but by then the Litowitz’ had already separated.
4.2.1.3. In the marriage dissolution proceedings Mr. Litowitz asked the court to allow him to put the two frozen embryos up for adoption by another infertile couple, but Mrs. Litowitz asked the court to allow her to use another surrogate mother to bring the frozen pre-embryos to term as her own children.
4.2.1.4. The relevant contract provision signed by Mr. and Mrs. Litowitz and the Loma Linda Clinic under the heading Legal Status and Dispositional Choices, 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 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.”
4.3. Procedural history
4.3.1. Litowitz v. Liltowitz, Superior Court, Pierce County
4.3.1.1. The trial court ruled orally, awarding the preembryos to David, “with orders to use his absolute best effort for adoption to a two-person family outside of the state of Washington and, obviously, considering the donor in that, as required.” The ruling was later reduced to a court order.
4.3.1.2. The trial court applied a best-interests-of-the-child analysis in reaching its decision: “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."
4.3.1.3. Becky Litowitz appealed
4.3.2. LITOWITZ, Respondent, V. LITOWITZ, Appellant 102 Wash.App. 934 (2000)
4.3.2.1. The Court of Appeals held that: (1) egg donor contract and couple's consent for cryopreservation of preembryos did not imply an agreement by husband that couple's wish to have another child would survive dissolution of marriage and that wife should be awarded preembryos to carry out that plan;
4.3.2.1.1. (2) husband, as supplier of gametes to preembryos, had constitutional right not to procreate with respect to preembryos, while wife had no constitutional rights with respect to preembryos; and
4.3.3. Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002)
4.3.3.1. The Supreme Court held in a case of first impression, that under cryopreservation contract, husband and wife had to petition court for instructions when they were unable to reach mutual decision regarding disposition of preembryos upon dissolution of their marriage.
5. Issue
5.1. (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?
5.2. (2) Whether a motion by Respondent David J. Litowitz to submit additional evidence on review should be granted.?
6. Rule of Law
6.1. Case Law
6.1.1. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992)
6.1.1.1. To resolve a dispute involving pre-embryos, a court should first ascertain the wishes of the interested parties and if unable to do so or if there is a dispute, the court should then refer to the terms of the parties’ prior agreement regarding their disposition and if no agreement exists, then balance the relative interests of the parties in using or not using the pre-embryos.
6.1.2. Kass v. Kass, 91 N.Y.2d 554, 562, 569, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998).
6.1.2.1. In Kass, the court concluded that the parties' agreement to donate preembryos to an in vitro fertilization program for research purposes would control. In that case both parties were progenitors. The woman wanted to implant the pre-zygotes to achieve another pregnancy. The man opposed any pregnancy and counterclaimed for specific performance of the agreement to allow the in vitro fertilization program to keep them for research. The parties had signed four consent agreements provided by the hospital. The court found the consent agreement manifested the party's intent and concluded the pre-zygotes must be donated to the clinic.
6.1.3. A.Z. V. B.Z., 725 N.E.2d 1051 (Mass. 2000)
6.1.3.1. A prior written agreement between a husband and wife regarding the disposition of frozen embryos in the event of a divorce was unenforceable
6.1.4. J.B. v. M.B., 783 A.2d 707 (N.J. 2001)
6.1.4.1. Prior written frozen embryo disposition agreement was unenforceable because it would infringe on the fundamental right to not procreate.
6.2. Contracts
6.2.1. Express
6.2.1.1. Six elements of expressed contract must be present to be valid: offer, acceptance of offer, consideration, mutual assent, capacity, and legality.
6.2.2. Implied
6.2.2.1. Implied in fact
6.2.2.1.1. The common understanding based on the conduct of the parties serves as a contract.
6.2.2.2. Implied in law
6.2.2.2.1. The court determines whether this type of contract existed after performance or non-performance as a means to determine whether one party can collect restitution for a service they performed.
7. Application
7.1. Egg donor contract
7.1.1. "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."
7.1.1.1. Petitioner Becky M. Litowitz correctly asserts that the egg donor contract gives her and Respondent equal rights to the eggs even though she is not a progenitor.
7.1.1.2. Even though Respondent Litowitz, as the intended father, indeed has a biological connection to the preembryos, he has no greater contractual right to the eggs than Petitioner Litowitz has as the intended mother.
7.1.1.3. Th egg donor contract does not relate to the preembryos which resulted from subsequent sperm fertilization of the eggs.
7.2. Cryopreservation contract
7.2.1. The parties have not reached a mutual decision regarding disposition of the preembryos. Because they have not, it is appropriate for the courts to determine disposition of the preembryos under the cryopreservation contract.
7.2.1.1. "The touchstone of contract interpretation is the parties' intent." Contract interpretation must be based on the intent of the parties as reflected in their agreement.Intent may be discovered not only from actual language in an agreement, but also from "`viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.'
7.2.1.1.1. The state Supreme Court reversed and following the wording of the clinic agreement, five years having passed, ordered that the pre-embryos not be implanted. The court further ruled that the agreement with the egg donor ceased to apply when the eggs were fertilized and became embryos.
8. Conclusion
8.1. The Supreme Court reversed the decision of the Court of Appeals
8.1.1. This case is limited to a determination, in a parenting plan incident to a dissolution action, of the contractual rights of a married couple to two cryopreserved (frozen) preembryos remaining after successful implantation of three preembryos in a surrogate mother which resulted in the birth of a child.
8.1.1.1. It is worth noting that even an intended parent not genetically related to the child may “veto” transfer. Litowitz v. Litowitz , 48 P.3d 261 ( Wash. 2002). Although a “right to procreate” has been enunciated, courts have universally opted for a superior “right not to procreate,” with little analysis
8.1.1.2. The decision in case is based solely upon the contractual rights of the parties under the preembryo cryopreservation contract with the Loma Linda Center for Fertility and In Vitro Fertilization dated March 25, 1996. Under that contract Petitioner and Respondent gave direction to the Loma Linda Center for disposition of the remaining preembryos resulting from fertilization of five eggs they acquired under the egg donor contract.
8.1.1.3. Under terms of the contract, then, the remaining preembryos would have been thawed out and not allowed to undergo further development five years after the initial date of cryopreservation, which by simplest calculation would have occurred on March 24, 2001.