Disposition of Pre-embryos: What Happens to Pre-embryos Upon Divorce?
By Ashley Cervin and David McGrath
The modern era and its miracles of fertility science has a potential dark side. What happens when divorcing couples disagree on what to do with pre-embryos? As a preliminary matter, some definitions are in order: pre-embryo refers to an embryo before implementation in the uterus and progenitor in this context are the individuals who provided the biological material.
We will start our journey in Connecticut, the land of steady habits, where the seminal case on disposition of pre-embryos is Bilbao v. Goodwin, 217 A.3d 977 (2019). In Bilbao, the Connecticut Supreme Court was presented with the issue of how pre-embryos created through in vitro fertilization should be distributed upon the divorce. The parties had executed an agreement which stated that they wanted the pre-embryos discarded upon divorce. The trial court had found that the agreement was unenforceable and awarded the pre-embryos to one party. The Connecticut Supreme Court concluded that the agreement was enforceable and reversed the trial court’s decision.
In Bilbao, the Connecticut Supreme Court conducted a thorough nation-wide review of the state of the law and articulated the three leading approaches to determine the disposition of a pre-embryo upon divorce: (1) the contractual approach, (2) the balancing approach, and (3) the contemporaneous mutual consent approach.
Under the contractual approach, the court relies on the agreement between the two parties who created the pre-embryo. The agreement is presumed to be valid and enforceable. The agreements are most often consent forms or storage agreements between the parties and the fertility clinics.
In Bilbao, the Connecticut Supreme Court held that the contractual approach was the first step to determine the disposition of pre-embryos upon divorce. It did so on the basis that this placed decisional power over a deeply private decision in the hands of the progenitors. It provides autonomy over and certainty over an absolute ability to change one’s mind. Though progenitors may change their preferences for disposition over time, advance directives that allow for joint, written modifications may address this concern. Connecticut statutes require fertility clinics to provide progenitors with information sufficient to allow that person to make an informed and voluntary choice. The contractual approach is aligned with Connecticut’s public policy to enforce intimate partner agreements. The Connecticut Supreme Court noted that professional associations focusing on reproductive medicine recommend that progenitors provide advance directives for disposition of pre-embryos in various scenarios, including divorce.
The Bilbao decision explicitly did not decide whether the contractual approach would apply where one party would be forced to become a genetic parent against his or her wishes. That is a substantial differentiation from a strict contractual approach and leaves open a large question mark or unknown for Connecticut couples where the contractual approach would award the pre-embryos to a party who might use them. Connecticut law remains unsettled and have been no updates regarding pre-embryo disposition over the course of the last five years since Bilbao. The Connecticut Supreme Court also did not go a step further to determine what should be done in the absence of an enforceable agreement, leaving more unknowns.
Other states have followed other paths. Under the balancing approach, the court weighs the interest of each party in the pre-embryos. The balancing approach can be applied when the parties do not have an agreement, or the agreement is unenforceable. The factors the court considers under this approach include the intended use of the pre-embryos, the ability of each respective spouse to reproduce through other means, reasons for pursuing in vitro fertilization, emotional consequences, and bad faith.
The New Jersey Supreme Court adopted the balancing approach in resolving disputes over the disposition of pre-embryos. If there is a disagreement between the parties, even after signing a contract, the interests of both parties must be evaluated for the court to enter a decision regarding disposition. The balancing approach allows parties to change their mind if circumstances change, but this approach also leaves a broad discretion to the court to evaluate and determine disposition.
The seminal case in New Jersey is J.B. v. M.B., 170 N.J. 9 (2001). The parties in J.B. signed a consent form stating that the control and disposition of the embryos belongs to the parties. The consent form further provided that control, direction, and ownership of the pre-embryos would be relinquished to the IVF program upon divorce, unless the court specifies who takes control. Upon divorce, Wife wanted the pre-embryos discarded and Husband opposed. Husband wanted the embryos to be implanted or donated to other infertile couples. Wife argued that there weren’t any discussions about disposition upon divorce, however, Husband argued that they did have long conversations because IVF posed a dilemma due to his religion, and that they agreed the pre-embryos would not be destroyed but would be used by Wife or would be donated to infertile couples. The trial court had found Wife had a greater interest in the pre-embryos because Husband was fully able to father a child and sought control of the pre-embryos to donate them to another couple.
The New Jersey Supreme Court examined the consent form and found that it did not express a clear intent by the parties because it carved out an exception that allowed either party to obtain a court order directing the disposition upon divorce. The New Jersey Supreme Court reviewed the nation-wide approaches and determined that the better approach for the court to take is to enforce agreements entered at the time of IVF, subject to the right of either party to change his or her mind about disposition up until the point of use or destruction. If there is a disagreement between the parties, the interests of both must be evaluated by the court. Here, the New Jersey Supreme Court held that the pre-embryos were to be destroyed, noting that Wife did not object to the continued storage, but that Husband would be responsible for the continued storage fees. The court noted that it did not express any opinion in a case where a party who has become infertile seeks to use pre-embryos despite a disagreement from the other party.
Under the contemporaneous mutual consent approach both parties must agree to a disposition of the pre-embryos at the time of disposition. While this approach leaves the decision solely to the parties, this leaves things up in the air for either party to change their mind at any time up until the point of use or destruction. Pre-embryos could be stored indefinitely if the parties are unable to agree, which could leave the parties in limbo for a significant amount of time.
Iowa follows this contemporaneous mutual consent approach, based on its seminal case of In re Marriage of Witten, 672 N.W.2d 768 (2003), wherein the court held that the parties could not use or destroy pre-embryos absent an agreement by both parties to do so. The parties in Witten signed a contract with the facility that said the pre-embryos would be used for transfer, release, or disposition only with the signed approval of both parties, unless one of the parties died. The contract further provided for termination of storage upon certain contingencies, i.e., written authorization to release or destroy, death, failure to pay the annual storage fee, expiration of 10 years from the date of the agreement. At trial, Wife requested custody of the embryos. Husband requested that the embryos not be destroyed but further requested that Wife not be allowed to use them. He did not oppose donating the embryos for use by another couple. The trial court held that the storage agreement should be enforced and enjoined both parties from transferring, releasing, or in any other way disposing of the embryos without written and signed approval. Wife appealed, arguing that the contract did not address the disposition upon divorce, and argued that the best interests test should apply. The court rejected the contractual approach and held that agreements entered at the time IVF is commenced are enforceable, subject to either party changing his/her mind about disposition, up until the point of use or destruction. The court held that there would be no disposition until the parties were able to reach an agreement. The court noted that the contractual approach and the contemporaneous mutual consent share the underlying goal that such decisions regarding the embryo should belong to the couple who created the embryo. The court noted that it would be against public policy of the state to enforce a prior agreement of personal, reproductive choice, when one of the parties has changed his or her mind regarding disposition. No transfer, release, disposition or use of the embryos cannot occur without the signed authorization of both donors. The party opposing destruction should bear the storage costs.
Some states, including Arizona and Florida, have enacted statutes addressing the issue of disposition of pre-embryos.
In Arizona, disposition of pre-embryos is governed by Ariz. Rev. Stat. § 25-318.03. In marital and domestic relations actions, the statute directs the court to award the in vitro human embryos to the spouse who intends to allow the invitro human embryos to develop to birth. If a spouse does not consent to being a parent, any resulting child from the disputed in vitro human embryo is not a child of the spouse, has no right, obligation or interest with respect to the spouse. If both spouses intend to allow the in vitro human embryo to develop to birth, the court must resolve the dispute in a manner that provides the best chance for the invitro human embryos to develop to birth.
In Florida, disposition of eggs, sperm, or pre-embryos are governed by Fla. Stat. § 742.17. The statute requires the couple and treating physician to enter into a written agreement providing for the disposition of the eggs, sperm, and pre-embryos in the event of a divorce, death of a spouse, or any other unforeseen circumstance. However, the statute provides absent a written agreement the decision-making authority resides jointly with the couple.
Given the state of the law and different approaches, couples creating pre-embryos would be well-advised to consult with local counsel who are apprised of the current developments in the state in question.