In re the Marriage of David J. LITOWITZ, Respondent v Becky M. LITOWITZ, Petitioner 146 Wash.2d 5...

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In re the Marriage of David J. LITOWITZ, Respondent v Becky M. LITOWITZ, Petitioner 146 Wash.2d 514 June 13, 2002. Supreme Court of Washington by Mind Map: In re the Marriage of David J. LITOWITZ, Respondent v Becky M. LITOWITZ, Petitioner 146 Wash.2d 514 June 13, 2002. Supreme Court of Washington

1. Issue before the court

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

1.1.1. A parenting plan is a written document that outlines how parents will raise their child after separation or divorce.

2. Rule of Law

2.1. This was the first case in which this court had been asked to resolve a dispute over disposition of frozen preembryos as such they turned to case law in other jurisdictions.

2.1.1. Davis v. Davis 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.

2.1.2. Kass v. Kass Agreements entered into between a man and woman related to the disposition of pre-zygotes are presumed valid and binding and will be enforced in any subsequent dispute.

3. Application

3.1. The law governing this case is contract law.The specifics of the contract are as follows

3.1.1. The cryopreservation agreement with Loma Linda clinic titled “Legal Status and Dispositional Choices” was signed by both Mr and Mrs Litowitz when they decided to have a child by in vitro fertilization It clearly stated that both husband and wife have agreed to be participants in the cryopreservation program dated March 25, 1996

3.1.2. Mr and Mrs Litowitz gave authority to the Loma Linda clinic for the disposition of the remaining 2 preembryos, specifically directing them to thaw out but not  allow further development  and be disposed off after being preserved for a total period of 5 years from the initial date of cryopreservation. Five years, unless the couple wish to extend the status of their participation by another joint request to the clinic to which the clinic must agree. Further, any decision regarding the disposition of their pre-embryos would be made by their mutual consent. If they are unable to reach a mutual decision they must petition to a court to render a final decision.

3.2. Since Mr and Mrs. Litowitz were unable to come to a mutual agreement about the disposition of the preembyos, Mrs. Litowitz petitioned the court to determine disposition of the preembryos under the cryopreservation contract.

3.2.1. "Intent may be discovered not only from actual language in an agreement, but also from viewing contract as a whole, subject matter and objective of contract, all the circumstances surrounding making of contract, subsequent acts and conduct of parties to contract, and reasonableness of respective interpretations advocated by parties." Under terms of the contract, the remaining pre-embryos would have been thawed out and not allowed to undergo further development five years from March 25th 1996 which was the approximate date of cryopreservation. Since neither Petitioner nor Respondent had requested an extension of their contract with the Loma Linda Center.

3.3. While the court in this case, did not engage in a "legal, medical or philosophical discussion [as to] whether the preembryos in this case [were] “children,” nor whether Petitioner (who was not a biological participant) is a progenitor as is Respondent (who was a biological participant)" this case highlights the numerous relationships involved in ART and forces the court to balance the parties interests.

3.3.1. In Litowitz, unlike most IVF cases, the eggs used in the procedure belonged not to the wife, but to a third party egg donor the Litowitz's used for their IVF procedure. During the Trial Court, Mrs. Litowitz filed a motion for reconsideration, incorporating the following declaration from the egg donor who stated in the event that the court fails to award the preembryos to Becky...I insist that the court award the preembryos to me or return the eggs to me in accordance with the contract.” The trial court denied the motion for reconsideration, however, this was significant not only because this was the only evidence of the donor's intent outside of the egg donor contract, but also had the egg donor asserted her rights, the courts would have to consider it. Further complicating the matter.

3.3.2. Ultimately The Washington Court of Appeals ruled in David’s favor finding that Mrs. Litowitz’s interests could result in unwanted fatherhood for Mr. Litowitz, and thus the greater burden. He was the only genetic progenitor and he would have been thrust into an unwanted parenting role.

4. Conclusion

4.1. Washington Supreme Court ruled that the pre-embryos should be thawed out and allowed to expire because the dispute had not been resolved within a five year time frame prescribed by the Cryopreservation Agreement.

4.1.1. A dissenting opinion filed by one judge argued that the five year limit should not apply because of judicial delay in reaching a final decision.

4.2. The court concluded that the husband's right not to procreate compelled an award of the embryos to him.

5. What happened

5.1. Mr and Mrs Litowitz were married and had one biological child together which was Mrs  Litowitz’s third child  after which she had a hysterectomy rendering her unable to  bear more children.

5.2. In order to have another child the couple consulted with the Center for Surrogate Parenting, Loma Linda University Gynecology and Obstetrics Medical Group  for in vitro fertilization.

5.2.1. Five preembryos were created from donor eggs (as per the egg donor contract) and Mr Litowitz’s sperm. Three of the prembryos were implanted in the surrogate mother and two were cryopreserved for future use.

5.3. By the time their fourth child was born the couple had separated.

5.3.1. At the time of marriage dissolution proceedings Mr. Litowitz asked the court to allow him to put the  two frozen embryos up for adoption by another infertile couple. 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 and they could not come to a mutual agreement.

6. Facts

6.1. Procedural History

6.1.1. Litowitz V. Litowitz Superior Court, Pierce County Dissolution of marriage action was brought forward. Judge awarded husband two cryopreserved pre embryos that were formed after husband's sperm fertilized donated eggs. Wife appealed

6.1.2. LITOWITZ, Respondent, V. LITOWITZ, Appellant 102 Wash.App. 934 Oct 17, 2000 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; 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

6.1.3. In re the Marriage of David J. LITOWITZ, Respondent v Becky M. LITOWITZ, Petitioner. 146 Wash.2d 514 June 13, 2002. Supreme Court of Washington 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.

7. Impact

7.1. On business practices

7.1.1. Complex Ligitation and Artificial Reproductive Technology 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. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Couples should discuss the legal implications of their decisions with an experienced lawyer before the fact, so that in case of seperation they are prepared to  deal with the legal and ethical challenges presented by their situation.

7.1.2. Emergency Directives in IVF Treatments 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. Clinics should encourage clients to  to talk about the possibility of separation despite social norms that may consider discussion of the topic taboo. These agreements not only protect the interests of the couple but also how fertility clinics do business.

7.2. Cases that have cited Litowitz v. Litowitz

7.2.1. In re Marriage of Witten, 672 N.W.2d 768 A dissolution of marriage case where a couple had attempted to become parents using IVF. After several unsuccessful embryo transfers, 17 fertilized eggs remained in storage at the medical facility.  Wife asked that she be awarded “custody” of the 17 embryos. Husband did not want wife to use the embryos and asked the court to prohibit either party from doing so without the written consent of both parties. The Wittens had signed an embryo storage agreement that provided that embryos will not be used for transfer, release, or disposition without the signed approval of both parties.

7.2.2. Roman v. Roman, 193 S.W.3d 40 The Romans, a divorced couple, each sought different outcomes for their cryopreserved preembryos created during their marriage. Randy Roman sought to have them destroyed, and Augusta Roman sought to implant them in an attempt to have biological children. The Texas court, citing several related cases, declared that the written IVF consent form the Romans had signed would govern the outcome of the cryopreserved preembryos.

8. The cryopreservation contract  (1) indicated that that any decision regarding the disposition of the remaining two pre-embryos will be made by mutual consent of both Mr and Mrs Litowitz. In the event they are unable to reach a mutual decision regarding the disposition of the pre-embryos, they must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of the pre-embryos and (2) authorized the Loma Linda clinic to thaw out the pre-embryos and allow them to expire after five years.