According to the Centers for Disease Control and Prevention, in 2012 alone, there were 65,000 births in the United States resulting from assisted reproduction technology, (Centers for Disease Control and Prevention, American Society for Reproductive Medicine, Society for Assisted Reproductive Technology. 2012 Assisted Reproductive Technology National Summary Report. Atlanta: U.S. Department of Health and Human Services; 2014). Although in vitro fertilization, the external fertilization of the egg and subsequent implantation of the fertilized egg into the mother’s uterus, has been utilized for a number of years, the development of cryogenic techniques has added a new dimension. Instead of immediate implantation of the fertilized egg, it is allowed to grow to an embryo of a certain size and is then frozen. The frozen fertilized embryo (FFE) can be maintained in cryogenic storage for a long period of time until it is thawed and implanted into a uterus.
The existence of a FFE in the context of a divorce presents complicated ethical and policy questions of reproductive rights that have not been answered by legislators or the courts. Cryopreservation injects into divorce proceedings the issue of whether one partner’s right to reproduce and the FFE’s right to life outweigh the other partner’s reproductive and privacy rights. Currently there are no federal regulations governing the disposition of FFE’s and states have struggled, but have thus far, failed to enact legislation addressing the use and treatment of FFEs.
Recently, the U.S. Supreme Court declined to hear an FFE case, making it clear that it would be leaving the state courts and legislatures to decide how to treat and classify the embryo, and to weigh rights of the parties in Szafraski v. Dunston, 34 N.E.3d 1132 (Ill. Ct. App. 2015) cert. denied, 136 S.Ct. 1230 (2016).
A review of recent state court decisions shows that there are three basic approaches employed in FFE cases; the contractual approach, the contemporaneous mutual consent approach and the balancing approach.
The contractual approach views the embryos strictly as property, and looks at whether the parties had previously reached an agreement about the disposition of the embryos. If so, the court will enforce this as it would any other contract and defer to the terms of the agreement, which ostensibly reflects the wishes of the parties at the time they reached the agreement.
The contemporaneous mutual consent approach allows either party to change his or her mind until the FFEs are used or destroyed. It differs from the contractual approach, which holds the parties to their initial contractual decisions regardless of any future change of heart.
The final approach is the balancing approach, where the court applies its own judgment to weigh the relative interests of the parties in order to determine the optimal outcome, regardless of any previous contracts between the parties.
In Szafraski, the Cook County Circuit Court held that a signed implied consent form provided by the fertility clinic, did not modify or supersede the oral contract they made whereby Dunston (the wife) was entitled to use the embryos to have a child, without limitation. As a result, Dunston was awarded custody of the embryos. The trial court chose to utilize the balancing approach, finding that Dunston’s interest in the embryos was superior to Szafraski’s interest in having her not use the embryos.
On appeal, the appellate court developed a hybrid approach which gave import to the contractual approach but, in the absence of a verbal or written agreement, would allow for a balancing of the parties’ interests. It then remanded the case to the trial court for an application of this approach. The trial court found a prior verbal agreement between the parties to create the embryos constituted an “oral contract” and supported Dunston’s position. The court expressly rejected Szafranski’s argument that the informed consent document supplied by the fertility clinic (which stated that the embryos could not be used unless both parties were in agreement) modified or superseded their oral contract. Interestingly, the appellate court made it clear that had it strictly applied the balancing approach, the outcome would have been the same. The court held that Dunston’s interest in using the FFEs is “paramount considering her inability to have a biological child by any other means”
The ruling in Szafraski, however, is not typical. Usually, one party’s right not to procreate has been considered to override the other’s right to procreate. Several state courts have recently made rulings relative to the use of FFE’s. In all but three cases, state courts have held in favor of the party who did not want the FFEs implanted, as in Davis v. Davis, 842 S.W.2d 588 (Tenn. Ct. App. 1992), (If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail); Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998), (embryos ordered to be destroyed as an agreement between the two biological donors regarding disposition of their pre-embryo is presumed valid and binding and should be enforced in the case of a dispute); J.B. v. M.B.,783 A.2d 707 (N.J. 2001), (the wife’s fundamental right to not procreate mandated destruction of the pre-embryos in light of the husband’s continuing ability to procreate with a different partner); McQueen v. Gadsberry, 507 S.W.3d 127 (Mo. Ct. App 2016), (ordering that no transfer, release, or use of the frozen embryos shall occur without the signed authorization of both parties.); Roman v. Roman, 193 S.W.3d 40 (Tx.Ct. App. 2006), (holding that an embryo agreement which provided for destruction in the event of divorce was valid contract and embryos were ordered to be destroyed).
Illinois, Maryland and Pennsylvania courts have ruled that in cases where the FFE is the only chance for a woman to have a biological child, the desire of the woman to have said child prevailed over the other parties’ desire not to have a child, Szafraski, supra.; Reber v. Reiss, 42 A.3d 1131 (Pa Super. 2012), Mbah v. Anong, CAD11-11394, (Md. Circ. Ct., 7th Jud. Dist. 2012).
In Reber, Pennsylvania decided its first case dealing with the disposition of FFEs in the context of a divorce. In its approach, the Superior Court employed a hybrid analysis similar to that of the Illinois analysis.
The Superior Court first examined the language of the informed consent the parties signed with respect to the storage of the FFEs. The husband’s position was that the agreement required the destruction of the FFEs at the end of three years; however, the court ruled that the agreement was actually between the parties and the cryopreservation facility, rather than an agreement between husband and wife to destroy the FFEs. Next, the court engaged in a balance of the interests analysis. After reviewing the wife’s interest in procreation compared to the husband’s interest to avoid unwanted procreation, the Court ruled that the wife was entitled to possess and use the FFE’s to bear children since the FFE’s represented the wife’s only opportunity to have a child.
In the early years of American jurisprudence, Thomas Jefferson recognized that “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times,” The papers of Thomas Jefferson, Jefferson to H. Tompkinson (AKA Samuel Kercheval), July 12, 1816. It is clear that the law has not kept pace with scientific advancements in the area of assisted reproduction technology.
Without a clear legal consensus, individuals cannot have any reasonable expectations about their legal rights when it comes to FFEs. The unfortunate consequence of all of this is that, until the legal uncertainty related to the issue is resolved, family planning using FFE’s will involve the risk that one partner may lose control over the implantation of FFE’s against his or her own personal wishes. Until legislatures enact statutory law on point and the U.S. Supreme Court weighs in, state courts and litigants will continue to struggle to resolve these issues.
Adam H. Tanker is an attorney at MacElree Harvey. Tanker focuses his practice on all aspects of family law matters including fertility agreements, alimony/spousal support, divorce, equitable distribution, marital agreements, child support and child custody. Adam can be reached at [email protected] or 215-309-4021.
Reprinted with permission from the July 11, 2017 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.