Litowitz v. Litowitz, 48 P.3d 261

1. IRAC Case Analysis

2. Facts

2.1. Parties:

2.1.1. David J. Litowitz

2.1.1.1. David and Becky Litowitz were married.

2.1.1.1.1. After being married for roughly 20 months the couple had their son Jacob.

2.1.2. Becky M. Litowitz

2.1.2.1. Becky had two other children (Ann Marie and Lucas) from a prior relationship before having her third (Jacob) with David Litowitz.

2.1.2.1.1. After her third child (Jacob) Mrs. Litowitz underwent a hysterectomy., which left her unable to produce eggs or to give birth naturally to any more children.

2.2. What happened:

2.2.1. In 1995 Becky and David agreed to have another child. However since Becky is unable to produce eggs or carry, the Litowitzes had to use In vitro and surrogacy method in order to have more children.

2.2.1.1. 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.

2.2.1.2. Hiccup: Washington law outlawed payment to gestational carriers.

2.2.1.2.1. Due to Washington's LawThe Litowitzes consulted with the Center for Surrogate Parenting in Beverly Hills, California , Loma Linda University Gynecology and Obstetrics Medical Group for in vitro fertilization

2.2.1.2.2. UPDATE IN THE LAW as of Today: Although according to the International Fertility group, "Washington ends the state’s ban on compensated surrogacy. Washington’s surrogacy ban was enacted in response to the notorious 1986 “Baby M” case" Reference: Washington Legalizes Compensated Surrogacy | IFLG - International Fertility Law Group

2.3. Procedural History:

2.3.1. Procedural History

2.3.1.1. Litowitz V. Litowitz Superior Court, Pierce County

2.3.1.1.1. The trial court:, Judge Stone: Awarded the preembryos to father David Litowitz in the best interest of the child. , To use his absolute best effort for adoption to a two-person, husband and wife, family outside of the state of Washington.

3. Rule of Law

3.1. Whether the Court of Appeals was correct in affirming the decision of the Trial Court based on "the best interest of the child". Whether legal agreement existed regarding how the decision to be made about the frozen pre-embryos whether one party has a better claim in the case.

3.1.1. Contract Law: All parties must be legally competent to enter contract; the must be an offer and an acceptance of that offer (Meeting of the minds); Consideration must be given (payment or other fullfillment of a promise); the purpose must be legal (used for legal purposes)

3.1.1.1. Contract grants equal rights to egg despite egg from egg donor

3.1.2. The Supreme Court recognized the provision of the storage consent contract which stated that disposition of the pre-embryos would take place in the event that 5 years passed.

3.2. Law cases to refer to

3.3. Relevant case law

3.3.1. Maureen Kass v. Steven Kass (1998)

3.3.1.1. "The Court of Appeals viewed its final decision to donate the cryopreserved preembryos to research as most accurately reflecting the joint agreement initially made by both parties, as outlined in their pre-divorce IVF consent forms. By regarding such documents as valid, binding, and enforceable, the court took a position that would continue to evolve in later cases," Kass v. Kass (1998) | The Embryo Project EncyclopediaKass v. Kass (1998)

3.3.2. Davis v. Davis Annotate this Case 842 S.W.2d 588 (1992)

3.3.2.1. "If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed" Reference: Davis v. Davis 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.

4. Issues before the court

4.1. Whether the Court of Appeals was correct when it affirmed a Superior Court award of frozen preembryos to Respondent David Litowitz in a parenting plan in a dissolution action

5. Analysis/Application

5.1. PETITIONER: BECKY LITOWITZ

5.1.1. Becky argues she should be continued procreation process since she is an intended parent. Becky claims to have the equal constitutional right of reproduction as the other party within the contract. She wants to have the children. Argues pre-embryos cannot be put for adoption as per the agreements between the couple and between the parties and Jennifer Yocom (egg donor)

5.1.1.1. Court chose not to interpret use of preembryo vs. child, not the issue at hand in this case. Court points out that since it is unknown if preembryos even still exist, since 5 year time limit had passed, that they could not continue to discuss that topic with relevance to case at hand

5.2. RESPONDENT: DAVID LITOWITZ

5.2.1. David argues that nowhere in their storage consent contract does it allow disposition of embryos for use by the other third party donor

5.2.1.1. Wants to submit additional evidence for review to show unfitness of petitioner o be a parent. Daivd Submits evidence of Becky's drug use, attempted murder by hiring third party, and unfitness to be a parent in which argues for custody and requests court to consider evidence from Superior Court child custody case.

5.2.1.1.1. Cryopreservation contact, not contract with egg donor- invalid in this case. Pre-embryos are fertilized eggs and no longer eggs and the egg donor contract does not apply here.

5.3. Mr and Mrs. Litowitz couldn't agree to mutually decide on the disposition of the pre-embryos stored under their consent contract

5.3.1. Under contract, both Mr and Mrs. Litowitz have equal rights to the pre-embryos as the "intended parents"

5.3.1.1. This case dig deeper on the Supreme Court's interpretation of the term child' and that she has a contractual right to custody of the future child

5.3.1.1.1. Supreme Court upholds Court of Appeals interpretation of contract, upholds that egg donor is not relevant for issue at hand; Egg donor contract applicable to eggs prior to fertilization, not after which is case for preembryo

6. Conclusion

6.1. The supreme court reversed the lower courts rulings.

6.1.1. Washington Supreme Court: Contractual rights were upheld through the contract entered into by both parties with the Loma Linda Center for Fertility and In Vitro Fertilizatio. The supreme court ruled based on the Contract with cryopreservation center. The argument was that since contract is written that if after 5 years, they parties have not requested an extension the preembryos would be thawed out and disposed of. The 5 year term has since passed at the time of this case, the courts decision was to let the preembryos be destroyed.

7. Impact

7.1. The Supreme Court’s decision in this case will affect how healthcare professionals and/or businesses engage in arrangement with families with IVF treatments. To establish clear clean ground rules pertaining to the complicated nature of an IVF treatment. To take time of embyro storage in account and how healthcare professional may be liable. This case is insight on how complicated matters of reproduction can be, especially with so many moving parts.

7.1.1. "Time waits for no man": Frozen embryo disputes. Open conversations about what happens to genetic material that can potential be used to create life.

7.1.2. Procreative right around when an individual or couple uses ART. Understanding the dynamic.

8. Importance:

8.1. Contract Law! The importance of this case is to protect healthcare practices and spouses when there are unique circumstances. Especially today when scientific technologies are growing. This law creates solace to the reproductive technology institutions. Know your rights and how the law can be interpreted.

8.1.1. This case places important value on human gametes, donors, recipients, children that are born through ART, and society.

9. Influnce:

9.1. This case created a tool for the healthcare industry to protect themselves, patients, individuals, couples in which assisted reproductive technology is involved.

9.1.1. Two current business practices:

9.1.1.1. Healthcare Technology in Reproductive care

9.1.1.2. IVF Centers: Healthcare Industry, stakeholders, the end users.