As couples increasingly turn to assisted reproductive treatments in order to have children, complex questions have arisen surrounding the disposition of their embryos in a divorce. In the absence of a prenuptial agreement, courts have generally taken one of three approaches: “contractual,” “contemporaneous mutual consent” or “balancing.”

Most common is the contractual approach. In Kass v. Kass, 91 N.Y.2d 554 (1998), the Court of Appeals stated that “[a]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them.” Id. at 565.

This stance has critics. The Supreme Court of Iowa held “that it would be against the public policy of this state to enforce a prior agreement between the parties in this highly personal area of reproductive choice when one of the parties has changed his or her mind concerning the disposition or use of the embryos.” In re Marriage of Witten, 672 N.W.2d 768, 781 (2003). The Iowa court stated, “[w]e have considered and rejected the arguments of some commentators that embryo disposition agreements are analogous to antenuptial agreement and divorce stipulations, which courts generally enforce.” Id. Explaining, the Iowa court said, “[w]hether embryos are viewed as having life or simply as having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements.” Id.

Legal scholars have also criticized the contractual approach.^[1] When dealing with “decisions about intensely emotional matters, where people act more on the basis of feeling and instinct than rational deliberation,” it may be “impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.” argues Carl H. Coleman in “Procreative Liberty and Contemporaneous Choice: An Inalienable Rights approach to Frozen Embryo Disputes.” 84 Minn. L. Rev. 55 (1999). Professor Coleman points out:

Other critics focus on the document itself. “[I]nformed consent forms often reflect accessions to recommended treatment that are neither deliberate, thoughtful, nor informed.” See Ellen Waldman, “Disputing Over Embryos: Of Contracts and Consents,” 32 Ariz. L.J. 897, 918 (2002).

Professor Waldman argues that “[d]ispositional agreements that are encrypted in informed consent documents smack of unconscionability.” Id. at 926. The agreements are contracts between the clinic and the married couple—not between husband and wife.

These critics often advocate the contemporaneous mutual consent approach. Specifically, “[w]hen faced with a pre-embryo dispute, courts should first ask gamete donors to reach a joint decision about the disposition of the stored embryos. If the couple cannot reach an agreement, the pre-embryos should remain in storage until they are no longer viable or until the couple is able to reach a joint decision.” See Christina C. Lawrence, “Procreative Liberty and the Pre-embryo Problem: Developing a Medical and Legal Framework to Settle the Disposition of Frozen Embryos,” 52 Case W. Res. 721, 742 (2002).

The Iowa Supreme Court—the only court to formally adopt the contemporaneous mutual consent approach—set forth in Witten:

A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction.Witten at 783.

One commentator noted that “the Witten opinion puts someone like [the husband] in a particularly powerful position.” Mark P. Strasser, You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce, 57 Buff. L. Rev. 1159, 1210 (2009). He notes:

For example, the court said that the party opposing destruction of the embryos would bear the costs of their cryopreservation. Someone who wanted to get back at an ex-spouse might well say that he or she had no interest in cryopreserving the embryos, thereby shifting the costs to his or her ex-spouse.Strasser,supra,at 1210.

Finally, we come to the balancing approach, first adopted by the Tennessee Supreme Court. See Davis v. Davis, 842 S.W.2d. 588 (1992) (However, the Davis court likely would have used the contractual approach had there been an earlier agreement). The balancing approach requires courts to “assess and weigh the competing reproductive interests of each spouse. In these cases, the right to procreate is pitted squarely against the right to avoid procreation.” See Ellen Waldman, “The Parent Trap: Uncovering the Myth of ‘Coerced Parenthood’ in Frozen Embryo Disputes,” 53 Am. U.L. Rev. 1021, 1025 (2004).

In a fact-specific analysis that examined each party’s reasoning and past consideration of adoption, the Davis court established a presumption in favor of the right to avoid procreation.

The Supreme Court of New Jersey adopted this approach in J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001). There, a married couple underwent in vitro fertilization following wife’s diagnosis that she could not become pregnant. Id. at 709. They signed a consent form agreeing that “‘all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances *** [a] dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues.’” (Emphasis omitted.) Id. at 713. When the wife filed for divorce, the trial court granted her the right to destroy the remaining pre-embryos. Id. at 710-11. The husband appealed, arguing that the trial court should have enforced an alleged agreement between J.B. and M.B. that the pre-embryos should be donated to infertile couples. The Supreme Court of New Jersey adopted a rule “to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos.” Id. at 719. Then, “if there is disagreement as to disposition because one party has reconsidered his or her earlier decision, the interests of both parties must be evaluated.” Ibid. The court found that the consent form did not manifest the couple’s clear intent for disposition because it allowed them to obtain a court order in the event of divorce. Id. at 713. The court turned to balancing the parties’ interests, finding that the husband’s right to procreate would notbe lost if he was denied an opportunity to use or donate the pre-embryos, but that the wife’s right not to procreate could be lost through attempted use or donation. Id. at 717. The court concluded that it would “not force [the wife] to become a biological parent against her will.” Ibid.

The Superior Court of Pennsylvania also has used the balancing approach. See Reber v. Reiss, 42 A.3d 1131 (2012). The court concluded that since the embryos “are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all … the balancing of the interests tips in Wife’s favor.” Id. at 1142.

Prenuptial agreements cannot regulate the rights of children, including how custody and/or child support will be addressed at the time of a divorce. However, a prenuptial agreement is superior to standard informed consent documents for regulating embryo disposition. Although courts adopting the contractual approach have likened agreements evincing the parties’ intent regarding the disposition of embryos to prenuptial agreements, they are not equivalent. A prenuptial agreement serves several purposes, including to ensure the parties’ informed consent in the context of an agreement providing full disclosure in a robust manner designed to avoid litigation at the time of divorce based upon agreed-upon terms specifically contracted to by the parties.

Absent a prenuptial agreement, the facility contract could arguably be valid and enforceable. For this reason, parties to a prenuptial agreement should consider contracting for the custody of the embryo itself, whether to continue storage and the payment of storage fees.

The overturn of Roe v. Wade could lead to a state determining that life begins in the embryotic state, which could conflict with restrictions in certain states on the regulation of the rights of children. Like many other aspects of reproductive health following Dodd, this remains up in the air.

Endnote:

[1] Notwithstanding these criticisms, this approach has been applied/endorsed in at least six states. See Kass, 673 N.Y.S.2d 350 (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); Marriage of Dahl, 194 P.3d at 840 (Oregon); Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App.2006) (Texas); In reMarriage of Litowitz, 146 Wash.2d 514, 48 P.3d 261, 268 (2002), amended by 53 P.3d 516 (Wash. 2002) (Washington); see also York v. Jones, 717 F. Supp. 421, 425 (E.D.Va.1989); but see A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 1057 (2000) (Massachusetts).

Reprinted with permission from the January 17, 2023 issue of the New Jersey Law Journal© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.