ISBA FAMILY LAW SEMINAR
MARCH 6 AND 13, 2009
GARY L. SCHLESINGER
CHRISTOPHER HAAF AND
What to do when just before the prove up, opposing counsel says, “what about the embryos?”
Request a continuance and start researching. However, here is the research.
The use of in vitro fertilization (ivf) is much more common that previously. It is a legal issue, which we as divorce lawyers need to be familiar with.
When a couple goes to a doctor or clinic for ivf, myriad papers are completed and signed. Some of them are the contract that the parties and the clinic or doctor create to govern the relationship. In one of them, the parties state what is to occur with the embryos that are not implanted. It is that situation that arose in the case I handled that resulted in my doing the research.
If you have no idea where to go to begin to find an answer, I highly recommend to you the list serves of the ISBA and the ABA. Famlawesq. Is the ABA listed that I sent a message to. Within 3 days, I had responses from around the nation and Great Brittan with case citations, legal briefs, law journal and review articles, and offers of phone conversations to help me. This service alone is well worth the price of ISBA and ABA dues.
The only Illinois case on the subject is of no help in the situation posited above. Miller vs. American Infertility Group, 897 N.E. 2d 897, 325 Ill.Dec. 298 (1st. Dist. 2008) petition for leave to appeal denied 218 Ill. 2d 542. The Appellate Court refused to apply the Illinois Wrongful Death Act to frozen embryos that were destroyed when the storage freezing mechanism failed, the embryos became too warm and died. The case is interesting reading on statutory construction.
Usually what happens in the divorce context is that one party wants the embryos destroyed and one party wants them kept to be utilized later as that one party decides. All the reported cases deal with that situation.
Why not let one party be in charge and decide if and when to implant them and hold the other party harmless from any liability? What follows is part of my trial brief in the case I had. The wife wanted control of the embryos and was willing to release the husband from any liability including child support.
The Illinois Supreme Court decided the case of Blisset v. Blisset on June 20, 1998. 123 Ill.2d 161; 526 N.E. 2d 125; 121 Ill.Dec 931. In that case, the parties had come to an oral agreement that the husband would not visit the children and the wife would not collect support from him. Later, the wife filed a petition seeking support, including past due support, current support, and college expenses. The husband appealed. The Fourth District affirmed, and the Supreme Court affirmed in part and reversed in part and remanded. In the opinion, the Supreme Court said:
“In the present cause, Allen and Barbara agreed to waive future child support payments in exchange for Allen’s giving up his future visitation with the children. The parties did not attempt to safeguard the children’s interest by establishing in court, prior to the initiation of the agreement, that the children would have adequate financial support, and that ending visitation was not detrimental to the children. Because Allen and Barbara failed to obtain judicial approval of their agreement, but rather usurped the judicial function by modifying the court-ordered child support obligation themselves, their agreement is not enforceable”.
Does this mean that if the Judgment for Dissolution of Marriage gives the wife full control over the embryos and if she later decides to implant them, that the husband would not be liable for support? Unfortunately, there is no case saying that. However, if judicial approval is given to that agreement, Blisset seems to say that the agreement would then be enforceable.
Allen Blisset argued that even if the agreement was not enforceable, Barbara should be equitably estopped from collecting child support arrearages. The Supreme Court said that Allen had failed to establish the elements necessary to support a claim of equitable estoppel. He had been told earlier on when they reached the oral agreement that it was not enforceable.
Allen attempted to argue laches. The Supreme Court dismissed that defense by saying “A spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered.”
At the end of the day, Allen was ordered to pay college expenses for his daughter, the back support, and medical and dental expenses for the children pursuant to the original divorce decree. Here, the husband reasonably fears that if the wife is given sole control over the embryos, he will find himself in the same position as Allen Blisset some time in the future, except that this Court will probably not now enter an order of current support for the embryos unless the Court feels that the cost of maintaining and storing them is a joint expense.
The Second District decided the case In Re: The Marriage of Hightower, in June 2005. 358 Ill.App 3d 165; 830 N.E. 2d 862; 294 Ill.Dec. 450. In that case, among many other issues, the Court was asked to deal with the issue of an agreement of the parties relating to support, visitation and custody of the children. The parties have reached an agreement on child support that was less than minimum guidelines. The issue was must the trial court approve that.
The Second District cites the Paternity of Perry, 260 Ill.App. 3d 374; 632 N.E. 2d 286; 198 Ill.Dec. 227 (1994) for the proposition that before a court can approve below guideline support, it must have a hearing pursuant to 750 ILCS 505(a) and make an express finding for the reason for the deviation. Applying that case to this case, it may be possible for the court to give the wife custody of the embryos and set the husband’s child support at zero after having a 505(a)(2) hearing. However, there is no guarantee that later, the wife will attempt to get real child support for the child born as a result of implanting the embryo and some court in the future will not honor the agreement of these parties even if approved by the court as a deviation from guidelines that the husband would have no financial responsibility.
In Re: The Marriage of Nau, 355 Ill.App. 3d 1081; 824 N.E. 2d 650; 291 Ill.Dec. 794 (2d Dist. March 4, 2005) is another opinion dealing with agreements of parties in relation to support. In the Judgment, the parties agreed that it was in the best interest of their minor child to reside one month with each party on a rotating basis and that the obligation for child support in light of the residential circumstances is abated and the issue of child support between the parties is reserved. The wife then filed a 2-1401 petition to vacate the agreement. The trial court denied the motion to vacate. The wife appealed. The trial court was affirmed. The order was not vacated.
The Nau court said that the wife attempting to rely on a recent case In Re: The Marriage of Smith, 347 Ill.App. 3d 395; 806 N.E. 2d 727; 282 Ill.Dec. 430 (2d Dist. 2004) was misplaced. In Smith, the court dealt with the issue of whether an agreement to modify support not contained in a court order was enforceable. The Smith court held the agreement was not. However, the Nau court said that in the Nau case the court sanctioned their agreement. Quoting itself in Smith, the Nau court said: “Parents may create an enforceable agreement for modification of child support only by petitioning the Court for support modification and then establishing, to the satisfaction of the Court, that an agreement reached between the parents is in accord with the best interest of the children.”
There is another consideration besides liability for support.
The United States Supreme Court has held in a long line of cases that the right to bear children, the right to their companionship and custody is a liberty interest entitled to the strict scrutiny test before government may abridge it. Therefore, the reverse must also be true. Each person must have a constitutional right to make a decision not to have any additional children. The parties went through fertility treatment and as a result have two daughters. No other children were born to or adopted by the parties and the wife is not now pregnant. However, if this Court sanctions what she is asking it to do, a child of this marriage could be born in the future contrary to the wishes or desires of the husband. But for the frozen embryos, there is no way that this Court has the power to order parents to have a child in the future. However, if the embryos remain intact and the wife unilaterally makes the decision to have another child utilizing these embryos, then the husband is forced into paternity against his will and potentially has to support this child to the age of 18 and beyond for college. Further, the estate plan that the father devises may be questioned in a probate proceeding if there is an additional child not mentioned in the estate plan.
Next is a discussion of the law from the other jurisdictions.
One such opinion is In Re: The Marriage of Arthur Lee Witten III and Tamera Jean Witten, Supreme Court of Iowa, 672 N.W. 2d 768 (2003). Mrs. Witten wanted sole custody of the embryos and Mr. Witten objected. The Iowa Supreme Court went through an exhaustive analysis of the then existing Case Law and some Law Review articles. The Court determined that the frozen embryos were not children whose custody could be determined pursuant to the best interest test of the Iowa Code dealing with custody.
The Iowa Supreme Court also discussed utilizing the agreement that the parties signed at the time of the infertility treatments and requiring it to govern the situation even after the divorce. In that case, apparently the agreement provided that the embryos could not be transferred, released, or discarded without the signed approval of both parties. The court cited a Washington case In Re: Litowitz, 48 P.2d 361 (2002) and a Tennessee case, Davis v Davis, 842 S.W.2d 588 (1992). Both Davis and Litowitz held that the contract agreement between the donors having disposition of the embryos was binding and survived divorce. The Witten Court took a slightly different approach to reach the same result. The Court held:
“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 should 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 expenses associated with maintaining the status quo should logically be borne by the person opposing destruction.”
The Supreme Court of Iowa therefore affirmed the ruling of the trial court enjoining both parties from transferring, releasing, or utilizing the embryos without the other party’s written consent.
As mentioned above, the Supreme Court of Washington decided the Litowitz, 146 W.N.2d 514, 48 P.3d 261 (2002). In that case, a similar issue was presented in the context of a divorce case. The trial court awarded the husband custody of the two embryos. The Supreme Court of Washington reversed the facts were similar to the facts in Witten. The Washington Supreme Court said it was not necessary to determine whether or not the embryos are children. It decided to base its decision “solely upon the contractual rights of the parties under the pre embryo cryopreservation contract. That contract provided that five years after the eggs were donated, they were to be thawed out and not allowed to undergo further development”. The Washington Supreme Court said there was no reason for that contract of both parties to be changed and reversed the decision of the trial court giving custody of the embryos to the father.
In the Case of Roman, the Court of Appeals of Texas, First District, Houston, the Appellate Court on February 9, 2006 decided a similar case. The case is at 193 S.W.3d 40. In that case, the husband and wife signed an embryos agreement with a reproductive center, which provided in the event of divorce, the embryos would be discarded. The parties were then involved in a divorce. The husband wanted the contract upheld and the embryos discarded. The wife wanted the right to implant the embryos so that she could have a biological child. She agreed that the husband would not have any parental rights or responsibilities. The trial court awarded her possession of the three embryos. The husband appealed. This was a case of first impression in Texas. The Texas Court cited the first decision on this subject, Davis v Davis, 842 S.W. 2d 588, Tennessee Supreme Court (1992). In that case the trial court awarded custody of the frozen embryos to the wife, but the Court of Appeals reversed on the ground that the husband had a constitutional right not to have a child. The Supreme Court affirmed the Appellate Court determining that the interest of the husband and avoiding parenthood was more significant than the interest of the wife in donating the embryos to another couple to be implanted.
The Texas Court then cited a New York Decision, Kass v Kass, 91 N.Y. 2d 554, 696 N.E. 2d 174 (N.Y. 1998). In that case, the highest court of the State of New York said that the consent agreement regarding the disposition of unused fertilized eggs should control. That agreement held that if the parties could not both consent to the disposition of the embryos, the embryos would be donated for research purposes.
The Texas Court then cited a New Jersey Appellate Court Decision, J.B. v M.B., 331 N.J. Super. 223, 751 A.2d 613 (N.J. Super. Ct. App. Div. 2000). In that case, the husband wanted to preserve the frozen embryos for his use or use by an infertile couple. The wife wanted the embryos destroyed rather than letting her former husband retain control of them. The trial court ruled in favor of the wife who wanted the embryos destroyed because the family unit no longer existed. The Appellate Court balanced her right not to become a parent with the husband’s right to procreate under the Fourteenth Amendment and held that the husband could have additional children later with somebody else if he wished and the wife had a constitutional right not to become a parent against her wishes. The New Jersey Appellate Court affirmed the trial court ordering the embryos to be destroyed.
The Texas Court then cites a Massachusetts’ Decision. A.Z. v. B.Z., 431 Mass.150, 725 N.E. 2d 1051 (Mass. 2000). In that case, the wife filled out a form that said if the parties became separated, they both agreed to have the embryos returned to the wife for her implant. The husband signed a blank consent form. The trial court enjoined the wife from utilizing the embryos. The Massachusetts’ Court held that the forms that the parties signed were not a binding contract and the Court could not assume that the parties intending those consents to govern the disposition of embryos four years after the forms were executed. The Appellate Court affirmed the trial court. The wife could not implant the embryos without the husband’s consent.
The Texas Court then cited Litowitz, discussed above. And then it cited and Witten, discussed above. The Texas Court held that a valid embryo agreement deciding the disposition of frozen embryos best served the public policy of the State of Texas and the interest of the parties. The Texas Courts spends a couple pages discussing the agreement that the parties signed. “We hold that the embryo agreement provides that the frozen embryos are to be discarded in the event of divorce. By awarding the frozen embryos to Augusta (the wife), the trial court improperly rewrote the parties’ agreement instead of enforcing what the parties had voluntarily decided in the event of divorce. Accordingly, the trial court abused its discretion in not enforcing the embryo agreement.”
The Appellate and Supreme Courts of several states have considered this issue. In all of them, the Court has either upheld the agreement of the parties if it contains a disposition on divorce clause a clause providing for the disposition of the embryos in the future or the Court has relied on the constitutional right of a person to not be forced to become a parent. In either event, the Court has not awarded possession, custody or control of the embryos to one party so that he or she may have them implanted and force paternity on the other party.
The above is most of my memo to the trial court. In my case, the trial judge decided to follow the contract, which said that both parents must consent before anything is done with the embryos. She did not address the issue of who pays storage charges in the future.
Since the above was written, there is one other case. The Court of Appeals for the State of Oregon, Oct. 8, 2008. In the Matter of the Marriage of Dahl. The trial court ordered the destruction of the embryos, the husband appealed. He argued that the embryos are life and “there is no greater pain than having participated in the demise of your own child.” He wanted to have them donated to others attempting to conceive.
The contract with embryology laboratory was very detailed. One paragraph said that if the parties were “unable or unwilling to execute a joint authorization,” then they authorize the following person to have the right to direct the lab to dispose of or transfer the embryos. In the blank, they wrote the name of the wife and both husband and wife initialed it.
The Oregon court then discusses all the cases mentioned above and concluded that the contract controlled so the trial court was affirmed.
For those of you interested in further reading:
Mother Jones magazine, July/August 2006 issue. Article entitled Souls on Ice.
ABA Section of Individual Rights and Responsibilities. Article, Who owns your frozen embryo? Published in spring 1998 newsletter. Available on ABA web site.
Google Frozen Embryo and get 334,000 sites.