1. Facts
1.1. Parties
1.1.1. Petitioner Becky M. Litowitz
1.1.2. Respondent David J Litowitz
1.2. What Happened
1.2.1. Petitioner Becky had a hysterectomy which left her unable to produce eggs or become pregnant
1.2.2. The couple decided to have a child through In Vitro Fertilization (IVF) at a clinic.
1.2.3. Three pre-embryos were implanted in a surrogate, producing a child in January 1997, and two were cryopreserved (frozen).
1.2.4. Both Petitioner Becky and Respondent David entered into a contract with the clinic in March 1996 indicating that they, the Intended Parents (both, equally), had the sole right to determine the disposition of the (unfertilized) eggs. This contract is not relevant to the outcome of this case.
1.2.5. The Intended Parents both signed an Agreement and Consent for Cryogenic Preservation in March 1996 indicating they wished unused (fertilized) pre-embryos to be thawed but not allowed to undergo further development. The execution of this contract is the subject of this case.
1.2.6. The Agreement and Consent for Cryogenic Preservation stated that in the event the couple were not able to come to a decision together regarding the disposition of the pre-embryos, the issue would be taken to court.
1.2.7. Petitioner Becky and Respondent David separated in 1996
1.2.8. Respondent David wished to donate the remaining pre-embryos; Petitioner Becky wished to take them to a surrogate and bring them to term.
1.3. Procedural History
1.3.1. Both the trial court and the first court of appeals held that Respondent David’s wish to not have a child superseded the Petitioner’s desire to have a child/children, and the eggs should be donated.
2. Issue before the court
2.1. Whether the cryopreservation contract dispute needs to be decided by the courts
2.1.1. Due to the provision signed in the cryopreservation contract by Becky Litowitz and David Litowitz, the couple were required to petition the court about what to do with the frozen embryos when they could not come to a mutual agreement.
3. Rule of law
3.1. Contract Law
3.1.1. Contract law was applied to this case and ultimately to the decision. The provision under the cryopreservation contract each party signed stated “We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our pre-embryos will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our pre-embryos, we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our pre-embryos.”
3.1.2. Contractual rights of each party was the consideration in this ruling
4. Application
4.1. Applying facts to the case
4.1.1. 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.
4.1.2. It is not correct to conclude, as now asserted by Respondent, that there was no written agreement concerning intervention by the court. The cryopreservation contract provided “in the event [the Litowitzes] are unable to reach a mutual decision regarding the disposition of [their] pre-embryos, they must petition a court of competent jurisdiction for instructions concerning the appropriate disposition of [their] pre-embryos.”
4.1.3. It is obvious that Petitioner and Respondent have not reached a mutual decision regarding disposition of the preembryos. Because they have not, it is appropriate for the courts to determine disposition of the preembryos under the cryopreservation contract.
4.1.4. “The touchstone of contract interpretation is the parties' intent.” FN76 Contract interpretation must be based on the intent of the parties as reflected in their agreement.FN77 Intent may be discovered not only from actual language in an agreement, but also from “ ‘viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.’ ”
5. Conclusion
5.1. Ruling
5.1.1. This case is less a matter of reproductive rights, and more a matter of contract enforcement. Both parties agreed to a contract regarding disposition of the preembryos. In fact, both parties attempted to use this contract as their primary mechanism to resolve the tort. As neither party had stipulated a plan regarding the disposition of the preembryos prior to the predetermined and agreed upon 5 year period, the clinic was obliged to thaw and dispose of the preembryos based upon contractual obligation. The question of progenitor rights is immaterial regarding resolution of the matter.
6. Impact
6.1. Why a health care professional would care about the decision and how it has changed the way business operates
6.1.1. The case revolves around contract enforcement; health care establishments would care about this decision in the drawing up of contracts pertaining to the complicated multi-party nature of an IVF treatment. To avoid liability, and the time and effort of becoming involved in numerous legal cases like Litowitz, a healthcare practice should take a new look at the contracts they use for their patients for these types of procedures.
6.2. Two current business practices that have been influenced by the holding
6.2.1. Many large medical centers now maintain “tumor banks” containing preserved tissues from cancer patients. The intended use of these materials is two-fold: to allow archived materials to be retrieved for future patient use (i.e. genetic testing or to ascertain as of yet undetermined therapeutic options) and to support research endeavors. In the past, a general surgical consent would often suffice as support for archiving of tumor materials for any future use (patient care or otherwise). Cases such as Litowitz v. Litowitz highlight the greater appreciation for clarity regarding ownership of these stored materials. At Johns Hopkins, the preservation of tissue from patients that is intended for anything other than patient care may now only be archived if patients have provided explicit consent for this process. With these new stipulations, the hospital has a much stronger position with regard to retention of specimens for future research projects.
6.2.2. Cord blood banks are another area of initially unclear legal ownership. With cord blood banking, the blood from the umbilical cord is collected from the placenta before or after delivery of the infant. Although the exact uses of this blood are likely not fully realized, there is hope that cord blood, which contains a large quantity of fetal stem cells, might be used to treat a variety of ailments in the future including leukemia and lymphoma. The legal question arises regarding who owns the cord blood. As the cord blood is drawn from the fetal placenta, it is generally felt that the cord blood is the property of the child. However, cord blood banking has only been available since the early 1990’s and all contracts are currently signed by the parental guardian at the time of birth. As such, none of the children who have had the procedure performed have been alive long enough to become adults and test this precedent. As cord blood may be of benefit both to the child from whom it was drawn as well as other close relatives - including parents and siblings - conflict is likely to arise regarding allocation of this resource in the future.
6.3. Impact of the decision
6.3.1. CASE: Parentage of J.M.K (Wash. 2005) THE WAY IT IS CITED: In vitro fertilization is "`a process whereby (usually multiple) ova are placed in a medium to which sperm are added for fertilization, the zygote thus produced then being introduced into the uterus and allowed to develop to term.'" In re Marriage of Litowitz, 146 Wn.2d 514, 517 n. 8, 48 P.3d 261 (2002) (quoting STEDMAN'S MEDICAL DICTIONARY 637 (26th ed. 1995)); STEDMAN'S MEDICAL DICTIONARY 657 (27th ed. 2000).
6.3.2. THE CASE: Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. Ct. 2013) THE WAY IT IS CITED: Notwithstanding these criticisms, the contractual approach has been applied/endorsed in five states. See Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180 (New York); In re Marriage of Dahl, 222 Or.App. 572, 194 P.3d 834, 840–41 (2008) (Oregon);Davis v. Davis, 842 S.W.2d 588, 597 (Tenn.1992) (Tennessee); Roman v. Roman, 193 S.W.3d 40, 50 (Tex.App.2006) (Texas); In re Marriage of Litowitz, 146 Wash.2d 514,48 P.3d 261, 268 (2002), amended by53 P.3d 516 (Wash. 2002) (Washington); see alsoYork v. Jones, 717 F.Supp. 421, 425 (E.D.Va.1989) (noting that cryopreservation agreement was a bailment contract between husband and wife and the medical institute); but see A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 1057 (2000) (Massachusetts).