Officially released November 5, 2019.
In Short: This is the seminal case in Connecticut on disposition of pre-embryos. (1) The contractual approach shall govern the disposition of pre-embryos on divorce where there is an enforceable contract (although this may not apply if a party were to be forced to become a genetic parent against his or her will); checkboxes do not necessarily render a contract unenforceable and agreement to deliver genetic material constitutes consideration.
Background Facts: The parties were married in 2011 and underwent in vitro fertilization (“IVF”) in an effort to have children, resulting in one child. Several pre-embryos resulting from the treatment were stored for implantation in the future. As part of the storage agreement with the fertility clinic, the parties stated that they wanted the pre-embryos discarded in the event of divorce, via a checkbox form, which was initialed and signed. The checkbox storage agreement form provided options for discarding, donation, and keeping by either party. The storage agreement provided that it had been discussed with a physician and that it could only be modified by mutual consent of the parties.
A dissolution action was filed in 2016. With the assistance of counsel, the parties drafted an agreement which resolved all issues but the allocation of a debt and the disposition of the pre-embryos. The parties presented testimony, the settlement agreement and the storage agreement at a hearing. Wife sought to enforce the storage agreement. Husband argued the agreement was unenforceable and sought to have the pre-embryos preserved or donated.
The trial court issued a memorandum of decision incorporating the settlement agreement, resolving the debt allocation and finding that the storage agreement was not enforceable because it lacked consideration and indicated agreement in the form of a checkbox. The trial court distributed the pre-embryos to Wife as property pursuant to § 46b-81, finding that Wife’s interest outweighed Husband’s interest.
Husband appealed and the appeal was transferred directly to the Supreme Court pursuant to § 51-199 and Practice Book § 65-1. Husband presupposed that the trial court correctly determined that the storage agreement was unenforceable and made two claims of error by the trial court. Husband’s claims were premised on his assertion that a pre-embryo is a human life. Those claims were that (1) the trial court incorrectly determined that the pre-embryos are property subject to distribution, and (2) even if the pre-embryos were property the trial court should have employed a presumption in favor of the party seeking preservation. In response, Wife argued that the trial court erred in finding that the storage agreement was enforceable and urges affirmation on that ground.
The Supreme Court took judicial notice of basic scientific facts citing McQueen v. Gadberry, 507 S.W.3d 127, 134 n.4 (Mo. App. 2016). The Supreme Court then reviewed the three leading approaches to determining the disposition of a pre-embryo upon divorce: (1) contractual approach, (2) balancing approach, and (3) contemporaneous mutual consent approach. The Supreme Court provided a detailed analysis of each approach. The standard of review applicable to the enforceability of dispositional agreements presented a question of law requiring plenary review.
The Supreme Court held, in the absence of formal legislative guidance, that the approach shall be the contractual approach on the basis that it placed the decisional power over a deeply private decision in the hands of the progenitors. It provides autonomy and certainty over an absolute ability to change one’s mind. Connecticut statutes provide requirements that fertility clinics provide a progenitors with detailed information regarding choices to be made and Connecticut public policy supports enforcement of intimate partner agreements.
The Supreme Court further held that the storage agreement was an enforceable contract. The parties made mutual promises to contribute genetic material. Checkboxes are not necessarily insufficient and are used in a wide range of important and legally binding contracts. Husband’s claims were all predicated on the absence of a contractual agreement which was not the case here. Husband made no claim at trial that the contract was unenforceable because a pre-embryo is a human life and the Supreme Court made no determination as to that argument in the absence of an adequate record.
The Supreme Court clarified the scope of the decision, holding that it only applied to contracts that, if enforced, will not result in procreation. The contractual approach may not apply in a scenario that would force a party to become a genetic parent against his or her will, and such contract might be unenforceable as against public policy. The Supreme Court also did not determine how to address the disposition of pre-embryos in the absence of an enforceable agreement.
The Judgment was reversed with direction to enforce the storage agreement, resulting in the same practical result in this instance as the original judgment.
