An increasing number of couples are turning to assisted reproductive technology, and specifically in vitro fertilization (IVF), to have children. As a result, more and more courts are struggling with the legal difficulties that arise when relationships end, but cryopreserved embryos remain. The Connecticut Supreme Court is the latest high court to take on one of these legally sticky and emotionally wrought situations.
A Classic Fact Pattern
Jessica Bilbao and Timothy R. Goodwin married in 2011, and started fertility treatments shortly thereafter. They successfully conceived a child. But when they filed for divorce a few years later, they still had remaining cryopreserved embryos stored with their fertility clinic. Prior to going through IVF, the couple completed pretty basic and standardized forms with the clinic indicating their wishes should certain scenarios happen — these scenarios included death or divorce. The couple jointly filled out a form and checked the box on the fertility clinic paperwork that — in the case of the divorce — they wished for their embryos to be discarded. Both parties initialed the selection and signed the form.
At the time of the divorce, as sometimes happens, one party was no longer happy with that selection. In this case, Bilbao asked the court to enforce the agreement per their signed form. Goodwin, however, said he had changed his mind. He did not want the embryos discarded, but instead wanted them to stay cryopreserved in case the couple reconciled in the future. (Aww… that’s kinda sweet.) Alternatively, he asked that the embryos be donated to others for conception purposes.
Trial Court Craziness
In a bizarre and legally questionable decision, the trial court sided with Goodwin that the clinic form should not be enforced. The trial court reasoned that in entering into the form agreement, the contract lacked consideration between the parties themselves. Further, the trial court took issue with the clinic document being merely a “checkbox” form, and therefore not robust enough of a contract to be enforceable. Goodwin should have been pleased, right? Not so fast. The trial court then went on, after finding the form unenforceable, to weigh the parties’ interests in the embryos. The trial court then found that Bilboa had a greater interest in the embryos than Goodwin, and awarded her the embryos accordingly. Not a ruling either party wanted! Perhaps this is a good time to mention that both parties were unrepresented — proceeding pro se — in the divorce proceedings.
Reason Reinstated Upon Appeal
Having succeeded in invalidating the contract but still losing the right to the embryos, Goodwin appealed to the Connecticut Appellate Court, which then transferred the case to the Connecticut Supreme Court. In any event, two weeks ago, the Connecticut Supreme Court’s ruling brought back some degree of sanity for all of Connecticut fertility practitioners, and thousands of patients in Connecticut who may have been panicking that the forms they had signed with their clinics were legally unenforceable.
In Support of Checkboxes
While the trial court denigrated the use of checkboxes on the form the parties signed, laughably, the Connecticut Supreme Court pointed out that even “Connecticut trial courts ‘routinely use’ checkbox forms to issue legally binding orders.” Ouch, that’s a third-degree burn. So good news, fertility clinics, there is no need to rewrite those checkbox forms. Checkboxes FTW.
The court further determined that there was, in fact, legally valid consideration for the contract entered into by the parties in signing the form. “The plaintiff and defendant made mutual promises to contribute gametic material, and the reproductive services center promised to store the pre-embryos in exchange for the certainty provided by the parties’ election of a disposition in the event of the parties’ divorce.” Yeah, exactly. Kind of … obvious.
Side-Stepping Personhood?
On appeal, Goodwin argued that the trial court had incorrectly distributed the embryos as “property” when they are, instead, human life. He similarly argued, even if deemed property, the trial court should have applied a presumption in favor of preserving the embryos, on the basis that embryos should count as human lives. The court declined to touch these arguments with a 10-foot pole, noting that they had not been made at the trial court level, and therefore the court lacked an adequate record on the topic. Instead, Goodwin had merely argued at the trial court-level that he should be able to change his mind.
Of course, by not ruling on this issue, the court sort of conveys how it feels on the merits of the question. If the court thought that human lives were being killed in this context, they might have found a way to hear the arguments. Yes, technically they avoided addressing the issue. But I would say the avoidance speaks volumes on the court’s stance.
By finding that the form was an enforceable contract, the court also avoided deciding the state’s approach if there is no agreement in place. The court spends time addressing the various approaches, including a balancing of the interests, as well as an approach called the “contemporaneous mutual consent” approach. That theory would adopt the general principle that conception can never happen, even if the parties agreed at the time the embryos were formed, unless the parties still agree to conceive later in time. But the Connecticut Supreme Court, again, specifically declined to address what approach the state might take if there hadn’t been an enforceable agreement in play stating that discarding the embryos was the couple’s mutual choice.
Don’t Get Too Comfortable Relying On Those Forms
The court interestingly also notes that its decision only applies to contracts, if enforced, that will not result in procreation. “We do not decide whether the contractual approach applies in a scenario that would force one party to become a genetic parent against his or her wishes or, if the contractual approach does apply, whether such a contract would be unenforceable for other reasons, including public policy.”
Tim Schlesinger, Missouri assisted reproductive technology attorney and embryo disposition expert, points out that the court is acknowledging the reality that it is much easier to apply the contractual approach when the contract does not require one party to become a genetic parent against his or her wishes. Without mentioning the constitutional right not to procreate, according to Schlesinger, the Connecticut Supreme Court’s decision “illuminates the reluctance of courts to allow one progenitor to force the other to become a genetic parent against their wishes, and leaves the Connecticut courts room to prevent such a thing from happening.”
Schlesinger also notes that he is not aware of any other court in this position making that distinction, versus just remaining silent on the issue. And that, he thinks, is important.
So, to all of the Connecticut women going through IVF in their late 30s or early 40s, be mindful of the possibility that love, sometimes, doesn’t last forever. Even if you think your partner has agreed to give you control over embryos, maybe consider leaving some unfertilized eggs cryopreserved… just in case the current spouse/partner/sperm-provider has a change of heart. In such an instance, Connecticut might be open to humoring such fickle feelings directly affecting your ability to have a child.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
