1. Impact of the decision
1.1. The parties chose to have their pre-embryos thawed and not allowed to undergo further development in the event the pre-embryos had been cryopreserved for over five years. Szafranski v. Dunston, 34 NE 3d 1132 - Ill: Appellate Court, 1st Dist., 2nd Div. 2015.
1.2. 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 Tison, 322 P. respective interpretations advocated by the parties. Western Plaza, LLC v. 3d 1 - Wash: Court of Appeals, 2nd Div. 2014
2. Importance
2.1. It is very crucial to read and stick with agreement and carefully read the agreement before making decision contracted with an egg donor and an in vitro fertilization (IVF) clinic in an effort to produce a child. The best interest of the child standard is what is used to determine child custody cases and in the instant case, this turned on who was the biological parent of the child. The State Supreme Court has also recognized the fundamental right of an individual's reproductive autonomy.
3. Influence
3.1. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) In Davis v. Davis the Tennessee Supreme Court laid a framework for deciding disputes between divorcing couples over frozen pre-embryos.[39] The court stated that disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is the dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed.
3.2. A.Z. V. B.Z., 725 N.E.2d 1051 (Mass. 2000) A.Z. v. B.Z., the Massachusetts Supreme Court determined a consent agreement, providing that upon the donors' separation the pre-embryos would be given to one of the donors for implantation, would not be enforced under the facts of the case.[55] The court concluded the contract was only intended to define the donors' relationship with the clinic; it did not contain a duration provision; it did not represent the true intention of the parties for disposition of the pre-embryos; and it was against public policy to compel a person to be a parent against that person's will.
4. Facts:
4.1. Parties:
4.1.1. In re the Marriage of David J. LITOWITZ, Respondent, v. Becky M. LITOWITZ, Petitioner.
4.2. What Happened:
4.2.1. Becky and David Litowitz, while married, contracted with an egg donor and an in vitro fertilization (IVF) clinic in an effort to produce a child. David's Litowitz (Respondent) sperm fertilized five donor eggs, which began cell division; three of these five “pre-embryos” were implanted in a surrogate mother while the other two were cryopreserved. None of these embryos had Becky’s genetic material, only David’s sperm. One of these embryos was successfully carried to term and Micah was born. The surrogate mother was the Litowitz's child, Micah. Becky and David had separated.
4.2.1.1. During their divorce, Becky wanted the remaining pre-embryos awarded to her for implanting in a surrogate, with the intent that Becky would be the primary residential parent for any resulting child. David is against sharing custody with Becky to be a joint parent. He wants to give up the baby for adoption. The trial judge awarded the pre-embryos to David, who wanted to place the pre-embryos with an out-of-state couple. Becky appealed this decision
4.3. Procedural History
4.3.1. Becky M. LITOWITZ, (Petitioner) filed a law case against David J. LITOWITZ (Respondent) arguing that the trial judge failed to follow the procedure in applying a best-interests-of-the-child standard to the pre-embryos. A husband and wife had to petition the court for instructions because they could not reach an agreement about what to do with frozen pre-embryos when they divorced. The trial court awarded the pre-embryos to the husband and the Court of Appeals affirmed this decision.
4.3.1.1. Supreme Court of Washington, En Banc.
5. Issue
5.1. Considering the facts presented by the petitioner, the trial court should have enforced the egg donor contract compelled an award of the pre-embryos to Becky. The trial court erred in considering the best interests of any child resulting from the pre-embryos. However, since David is the only progenitor before this court, he has the right to control the destiny of the pre-embryos and award of the pre-embryos to David.
6. Application/Analysis
6.1. Mrs. Becky Litowitz (responded) argues that the egg donor contract should be enforced, reasoning that she, as one of the “intended parents,” she should be allowed to continue the procreation process and Mr. David (responded) should change the position from donating the pre-embryos because they relied upon the agreement that only the Litowitzes would use the pre-embryos. Becky did not contribute any gametes to the pre-embryos. Therefore under a David analysis, she does not have a constitutional right to procreate. David is a progenitor and he has a constitutional right not to procreate.
6.1.1. The contracts signed by the Litowitzes do not require, either by express or implied terms, that David continue with the parties' family plan after the dissolution. David's right not to procreate compels an award of the pre-embryos to him.
6.2. The trial court awarded the pre-embryos to David, “with orders to use his absolute best effort for adoption to a two-person family outside of the state of Washington. The trial court reasoned since David was the biological father, he could determine what was in the best interest of the children.
6.2.1. Therefore, the court applied a best-interests-of-the-child analysis in reaching its decision: “My decision on the pre-embryo has very little to do with constitutional rights, everything to do with the benefit of the child.”