1. Facts
1.1. Petitioner and Respondent were married and had three children; two that were adopted by the Responder from the Petitioner's previous marriage, and one natural born child.
1.2. The petitioner had an emergency hysterectomy shortly after the birth of the third child. She had eggs frozen, from which five preembyos were created with the Respondents sperm. A surrogate mother gave birth to one child from three of the preembryos, leaving two preembryos.
1.3. Both parties agreed that after five years, the preembryos would be thawed but not allowed to undergo further development without joint direction. The court initially awarded custody of the preembryos to the father, who wanted to put them up for adoption, as opposed to the mother, who wanted to discard them. Other complications of the case include that the mother was abusing drugs and also tried to have the father killed.
2. Issue
2.1. The current issue before the court is in regard to the fate of the preembryos. Although lower courts ruled in favor of the Respondent, the Supreme Court decided that the agreement between Petitioner and Respondent indicated that the court should make the decision of the couple could not agree on how to proceed with the preembryos. Ultimately, this case looks at Contractual Intent.
3. Rule of Law (Tort)
3.1. Contract: Court must decide on all aspects of the agreement and on the agreement as a whole. Aspects include the language of the agreement, context, conduct following the agreement, and reasonableness of interpretation. The specific clauses in the contract are to be interpreted e.g. what is the basis for the court to make a decision in this case.
3.2. Court Decision on Agreement: There are several issues for the court to decide upon, and the court could take several angles in the decision making process. The court can decide from the language of the contract, whether one party has a better claim in the case, or what is in the best interest of the preembryo.
4. Parties: David J. Litowitz (Respondent) and Becky M. Litowitz (Petitioner)
5. Procedural History: The initial ruling in this case, by the superior court of Pierce County, was to award the husband the two cryopreserved eggs. The Petitioner appealed however the Appellate Court upheld the initial ruling. The case went to the Supreme Court where the judges ruled that the court needed to make the decision since the Petitioner and Respondent were unable to agree. The Court then ruled to reverse the lower courts ruling and discard the preembryos.
6. Conclusion: The Supreme Court decided that since the litigation took over five years and the parties could not agree on the fate of the preembryos that the preembryos should be destroyed per the contract with the clinic.
6.1. Impact: This case has not been cited by other cases.
6.1.1. It is possible that this case changed the way contracts are written between individuals seeking in vitro fertilization and the clinics they utilize.
6.2. Importance: This case is important to individuals entering into mutual contracts with a clinic.
6.2.1. 1) Most importantly, when neither party can decide as to how preembryos should be utilized, contractual language that reverts ownership to the clinic should be applied.
6.2.2. 2) Also,the best interest of the preembryo is not the determining factor in these cases.
6.2.3. 3) This ruling further defines that the fate of unborn preembryos is contractual, like any other property, and that the best interest of a preembryo is not a legal argument for settling a contractual disagreement.
6.3. Influence:
6.3.1. Clinics: Clinics that assist couples in in vitro fertilization need to include language in the contract as to how the preembryos will be used in the case of divorce, breakups, or disputes. Language should include a fallback method to determine who has the primary right to make decisions and/or a policy that the clinic retains the right to discard preembryos that are not being used in a way that is agreeable to both parents.
6.3.2. Potential Parents: Individuals trying to conceive via in vitro fertilization should discuss the possibility that their relationship might not last until the preembryo is ready to be implanted. There should be a contractual agreement between these parties that if they are not able to agree to a mutual decision regarding the preembryo, that a predetermined outcome will take place that may include destroying the preembryo. Couples should only use clinics that allow them to have the backup plan.
6.3.3. Biological Storage Facilities: These facilities have the obligation to store biological material such as preembryos for a specified amount of time. At the end of that time, if there is a dispute between parties, the facility could have a policy that the material either becomes their property or that the material is returned to the owners.
7. Application
7.1. Petitioner
7.1.1. Case: From the perspective of the Petitioner, the original contract states that there must be mutual agreement in the use of the preembryos and she does not agree to allowing the preembryos to be donated to another couple fro the purpose of adoption. The Petitioner would prefer that the preembryos be implanted in herself and that the Respondent is attempting to use the preembryos in a way that she does not approve of and thus is not in the spirit of their contractual agreement. The Petitioner has asked the court to find that the preembryos should be granted to her the Petitioner is not agreeable to any other resolution. The petitioner cites cases such as Kass v Kass wherein preembryos are returned to the clinic for research purposes in the event a couple separates and cannot decide how to proceed.
7.1.1.1. The Supreme Court ultimately found that it would make a decision independent of granting the preempryos to either party. It was their decision that the preembryos would be discarded since the Petitioner and Respondent could not agree to a decision.
7.2. Respondent
7.2.1. Case: From the Respondents viewpoint, the preembryos are equally his (biologically) and the best interest of the preembryos should be taken into consideration when deciding whether to let them be adopted or implanted in the Petitioner. He claims that the petitioner is not fit to raise the child because (a) she has a substance abuse problem, (b) would be a single parent, and (c) tried to have him murdered by a third party. He cites A.Z. v B.Z. that found that the court could not compel an individual to become a parent against their will and that any contract was only valid with the clinic and not between parents to be
7.2.1.1. The court and Appellate Court both found in favor of the Respondent as they determined this was in the best interest of the preembryo. Their decision was based on a balance between the original contract and the perceived inability of the Petitioner to care for another child.