In re the Marriage of David J. LITOWITZ v. Becky M. LITOWITZ, No. 70413-9 (June 13, 2002)
1. Facts
1.1. Parties
1.1.1. Respondent, David J. Litowitz, ex-husband of Becky M. Litowitz and both intended and natural father of the 2 pre-embryos in question
1.1.2. Petitioner, Becky M. Litowiz, ex-wife of David J. Litowitz, and the intended mother of the 2 pre-embryos in question, though not the natural mother
1.1.3. Though not involved in the court case itself, another important party involved in this situation is J.Y., the egg donor
1.1.4. Again, not involved in the suit but an important party in in the situation, is the Center for Surrogate Parenting at the Loma Linda University Gynecology and Obstetrics Medical Group in Loma Linda, CA - this is the institution that provided the contracts for the preservation of the frozen pre-embryos
1.2. What Happened
1.2.1. July 1980 - Petitioner and Respondent had a child, Jacob Litowitz; Petitioner had a hysterectomy shortly thereafter leaving her unable to produce eggs or give birth naturally
1.2.2. February 1982 - parties B. Litowitz and D. Litowitz were married
1.2.2.1. Respondent adopted petitioner's two children from previous marriage
1.2.3. March/April 1996 - the Litowtiz couple and the egg donor JY and her husband EY sign an egg donor contract
1.2.3.1. Petitioner is defined as intended mother
1.2.3.2. Respondent is defined as the natural father
1.2.3.3. Litowitz couple together is defined at the intended parents
1.2.3.4. Included in the contract is that if the EGGS are to be used by any other parties, the egg donor must give express, written permission
1.2.3.4.1. However, once the eggs become pre-embryos, this contract is no longer applicable
1.2.4. March 25, 1996 - the Litowiz couple enter into two contracts with Loma Linda ; (1) to "freeze" the pre-embryos through cryopreservation; and (2) to preserve the frozen pre-eymbryos
1.2.4.1. The second, preservation contract stated that in the event (A) death of one or both parents, (B) mutual withdrawal of consent for participation, (C) five years have passed since cryopreservation began unless the center agrees, per both parties' request, to extend participation (this was NOT done), or (D) the center ceases it's preservation, the Litowitz couple selected the option that their pre-embryos be thawed but not allowed to undergo further development
1.3. Procedural History
1.3.1. During a dissolution of marriage action, the Superior Court of Pierce County awarded the respondent the 2 pre-embryos; petitioner appealed
1.3.2. Court of Appeals affirmed; wife appealed again
1.3.3. The case came before the Supreme Court of Washington
1.3.3.1. The Respondent brought forth additional evidence that the petitioner was an unfit parent as she (1) used drugs and (2) had hired a third-party to kill him
2. Issue
2.1. Under what legal precedence does either party have a demonstrated right to the pre-embryos?
2.1.1. Does the contract that the Litowitz couple entered regarding the preservation of the pre-embryos give either individual the right to the pre-embryos?
2.2. Is the evidence brought forth by the respondent relevant and admissible?
2.3. Does the egg donor have a right to the pre-embryos?
2.4. Does Becky Litowitz, the petitioner, have any right to the "child" (her argued term rather than "pre-embryo") for custody and companionship, even though she is not a progenitor but is instead the intended mother?
3. Rule of Law
3.1. Throughout this case, the court avoided the issue of whether a pre-embryo is a "child" under the law
3.2. The legal issues surrounding in vitro fertilization and cryopreservation have not yet been fully fleshed out in the law; as a result, the court turned to prior cases to determine the potential impact of natural versus intended parents in the case of pre-embryos
3.2.1. Cases Examined
3.2.1.1. Davis v. Davis, Tennessee - first, look tot he preferences of the progenitors; if their wishes cannot be ascertained, or if there is dispute, then their prior agreement should be carried out; if not, the relative interests of the parties use of the pre-embryos must be weighted
3.2.1.2. Kass v. Kass, New York - the parties' previous agreement to donate pre-embryos to an in vitro fertilization program for research purposes would control
3.2.1.3. A.Z. v. B.Z, Massachusetts - contract signed only defined donors' relationship with the clinic, and did not include duration nor a clear picture of the parties' disposition of the embryos - they also found that it was against public policy to force someone to be a parent
3.2.1.4. J.B. v. M.B., New Jersey - the couples had previously signed a contract that they would give up control of the embryos if they dissolved their marriage unless the court specified otherwise; the court found that since one or both parties had changed their minds, they needed to evaluate the interests of both parties - they found that since M.B., the father who had wanted to save the embryos, could father more children in the future, the embryos should be destroyed per the mother's wish, as she had the right to prevent their implantation
3.2.2. Take-Away Points from the Cases
3.2.2.1. The key factor in determining the long-term decision for pre-embryos in the case of divorce should be any contract signed about the eventual wishes of the parent
3.2.2.2. Public Policy dictates against forcing someone to be a parent against their will
3.2.2.3. In the case that a contract does not exist, or if parties have changed their minds, the court should take into account the interests of both parties
4. Analysis/Application
4.1. All of this turned out to be moot, as based on logical assumptions, the five year mark at which point the pre-embryos would be allowed to thaw (instance C in the preservation contract explained above) had already passed (estimated to be in 2001)
4.1.1. Based on the terms of the contract, the pre-embryos would have been thawed, though no paperwork exists regarding the pre-embryos existence or non-existence
4.2. The egg donor contract is not an issue as the eggs had already become pre-embryos
4.3. The court found that it was not necessary to determine whether pre-embryos are children or not because the contract overrules in this case
4.4. The respondent's evidence was not accepted as he did not provide sufficient grounds for admission of said evidence
5. Conclusion
5.1. The Supreme Court of Washington did not accept the evidence presented by the respondent
5.2. The Supreme Court of Washington reversed the decision to award the husband the pre-embryos, and instead custody was taken by the Loma Linda Center and based on the contract the pre-embryos should already be thawed and thus destroyed
6. Impact
6.1. Roman v. Roman
6.1.1. Court referenced the Litowitz ruling's focus on the terms of the contract and also upheld the original terms of the contract for final ruling on what to do with the pre-embryos, even though the wife had tried to gain the pre-embryos as a part of dividing up "community property" within the divorce
6.2. Rooks v. Rooks
6.2.1. The court again looked to the clinic contracts, but in this case found that unlike in the Litowitz contract, the contract left the decision to the divorce court of what to do with the pre-embryos
6.3. Court cases continue to be brought up that are similar to this case as each state determines precedence in the face of still-to-be-written laws, as our lawmakers have not yet caught up to medical practice in the world of fertility treatment
7. Importance
7.1. Although this case furthered the reliance on contracts in the case of divorce in the presence of pre-embryos, it did not provide direction on:
7.1.1. Greater versus equal rights of progenitor parents over intended parents
7.1.2. The definition of pre-embryos as "children" under the law and any accompanying custodial right that might thereby be attached