1. Facts
1.1. Parties
1.1.1. David J. LITOWITZ, Respondent
1.1.2. Becky M. LITOWITZ, Petitioner
1.2. What Happened
1.2.1. Petitioner and respondent married in 1982. They had a child together born in 1980.
1.2.1.1. After the child was born, the petitioner received a hysterectomy leaving her unable to have children.
1.2.2. They decided to try for children via in vitro fertilization. Five preembryos were created with eggs received from an egg donor. The eggs were fertilized by the Respondent's sperm.
1.2.2.1. Three of the five preembroyos were planted in a surrogate resulting in the birth of a child in 1997. This left two preembroyos stored in a facility.
1.2.2.1.1. The respondent and petitioner signed a cryopreservation agreement and an addendum with the cryopreservation facility, which stipulated that if the couple is unable to make a decision regarding the disposition of our stored preembryos they maybe disposed of by the IVF Program.
1.2.2.1.2. The Petitioner and Respondent separated prior to the birth of the child in 1997.
1.2.3. The respondent and petitioner have the sole right to determine the disposition of the eggs through an egg donor contract with the egg donor and her spouse.
1.2.3.1. But...The Respondent and Petitioner would have to obtain express written permission from the egg donor if the eggs are to be transferred to another party.
1.2.3.1.1. During marriage dissolution proceedings, the parties of the case considered various options for handling the two remaining prembryos including planting them in a surrogate and bringing a child to term or putting the prembryos up for adoption.
1.3. Procedural History
1.3.1. The trial court ruled that the respondent receive custody of the two prembryos.
1.3.2. The Court of Appeals affirmed the trial court's ruling.
1.3.3. The petitioner brought the case to the Supreme Court of Washington.
2. Issue
2.1. Whether the Court of Appeals was correct when it affirmed a Superior Court award of two cryopreserved pre embryos to the Respondent in a parenting plan in a dissolution action.
3. Application
3.1. Petitioner's arguments
3.1.1. The petitioner argued that the egg donor contract should be enforced because she should be allowed to continue the procreation process as she was one of the "intended parents" outlined in the egg donor contract.
3.1.2. The petitioner argued that the respondent should not be able to donate the eggs or be put them up for "adoption" as the egg donor contract stipulates that express written consent is required from the egg donor.
3.1.3. The petitioner argued that the respondent agreed to parent another child prior to separation and that this implied agreement continued after dissolution of their marriage.
3.2. Respondent's arguments
3.2.1. The respondent argues that the egg donor contract does not provide for disposition of the preembryos to the petitioner.
3.2.1.1. He claims there was no defined provision in that contract relating outlining what is to happen to the preembryos in the event of a divorce.
3.2.2. The respondent argues that the cryopreservation agreement is enforceable and so he seeks the transfer of the prembroyos under that agreement and not the egg donor contract.
3.3. Court's application of the Rule
3.3.1. The court ruled that there was no express agreement to enforce the egg donor contract since it does not define what happens when the parties separate.
3.3.2. The court ruled that there is no enforceable implied agreement that the respondent and petitioner agreed to have children after dissolution of their marriage.
3.3.3. The court determined that the Cryopreservation Agreement authorized the Loma Linda clinic to thaw out the preembryos and allow them to expire after five years. Since the the litigation took more than five years since the agreement was signed so the pre-embryos should be allowed to expire.
3.3.4. The court ruled that the privacy interest in his reproductive function under the U.S. constitution results in the award of the pre-embryos to Mr. Litowitz.
4. Conclusion
4.1. The court affirmed the lower courts' rulings and awarded the pre-embryos to Mr. Litowitz.
5. Impact
5.1. Roman v. Roman, 193 S.W.3d 40 (Tex.App.-Hous. (1 Dist) 2006) An agreement between a separated husband and wife which provided that frozen embryos were to be discarded in the event of divorce was valid and enforceable.
5.2. In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003) If no agreement can be reached between the parties, the frozen embryos cannot be used regardless of what a prior written disposition agreement states.
6. Importance
6.1. A healthcare professional would care about the decision because it would inform them on their contracts with patients. Healthcare professionals will have to ensure that contracts clearly state clauses that address various situations that could arise during the course of the patient's treatment.
7. Influence
7.1. The ruling impacts the business of cryopreservation in that it confirms the admissibility of cryopreservation agreements in certain scenarios such as the separation of the parties to the agreement.
7.2. The ruling impacts the business of egg donorship in that it outlines the limitations of egg donor agreements with the intended parents. Egg donors may want increased rights prior to agreeing to become an egg donor.
8. Rule of Law
8.1. Legal Principles
8.1.1. Express and Implied Contracts
8.1.1.1. Express contract: Whether the egg donor contract is enforceable as written given that the couple are separated.
8.1.1.2. Implied contract: The respondent claimed that the petitioner agreed to continue having children with the petitioner even after the dissolution of the marriage.
8.1.2. U.S. Constitution: 4th Amendment: Right to Privacy
8.1.2.1. Whether unwanted parenthood should be imposed on either of the parents.
8.2. Legal Precedent
8.2.1. Stowe v. Davis, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993)
8.2.1.1. The parties had no written agreement regarding the disposition of the preembryos, but the court, in noted that an agreement existed and should be enforced.
8.2.2. A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000)
8.2.2.1. The court held that even though there was an agreement between the husband and wife for the disposition of the preembryos if they separate, such an agreement was unenforceable in part because the parties were divorced.