I recently came across an email that an attorney sent to the Washington State Bar Association’s Family Law email discussion list in which she asked what happens if a couple creates preembryos using reproductive medicine but then decides to get a divorce. This is fascinating to me because it really is one of the leading-edge issues in family law today.

“Here’s the basic scenario: You and your partner decide that you want to have children, but, for whatever reason, you can’t do so the old fashioned way (I’m pretty sure you have to be 17 and in the back of a car for it to be 100 percent effective).”

You go to a clinic that specializes in reproductive medicine, and, depending on your particular hardware, one of you donates the sperm and the other the egg. If one of you is not able to perform that particular task, the clinic uses donated material.

As part of the process, a reputable clinic will normally require both parties to sign a contract that governs who “owns” the preembryos, how long they will be stored, and what happens if you die, etc..

What happens if you decide you no longer want to be in a relationship with this person?

Can s/he use the preembryos to have children without your consent? Are you a “parent” if s/he does, and does that mean you need to pay child support?

Quick answer: It depends. Probably not.

There isn’t a whole lot of case law in this field because much the technology is advancing so quickly. Our Supreme Court didn’t even address this question until fairly recently when it decided the case of Litowitz v. Litowitz in 2002.

In Litowitz, the man and the woman went through the process I describe above, but then filed for divorce. He wanted to donate the preembryos to another couple, and she wanted them destroyed. The contact the parties signed provided that if they could not agree on how to dispose of the preembryos, they would submit their dispute to a court.

When they could not agree, they went to court, and the judge in their case conducted a “best interest of the child” analysis and ultimately issued an order that provided in part:

“DISPOSITION OF PREPREEMBRYOS: This court makes the following decision awarding the preembryos to father in the best interest of the child. If this child is brought into the world here in Tacoma or Federal Way, Washington the alternatives are not in the child’s best interest. In the first alternative the child would be a child of a single parent. That is not in the best interest of a child that could have an opportunity to be brought up by two parents. In the second alternative, the child may have a life of turmoil as the child of divorced parents. Also, both parties here are old enough to be the grandparents of any child, and that is not an ideal circumstance. The court awards the preembryos to Father with orders to use his best efforts for adoption to a two-parent, husband and wife, family outside the State of Washington, considering the egg donor in that, as Father is required.”

The woman appealed, but the court of appeals agreed that the lower court got it right. The woman then appealed to the Washington Supreme Court, but she lost there, too.

The Court decided the issue based strictly on contract principles, and because there was so little Washington case law on point, it looked to similar cases in other states. Once such case that it approved of was a decision by the Tennessee Supreme Court in the case of Davis v. Davis.

In Davis, the Tennessee Supreme Court adopted a framework for resolving disputes between divorcing couples over frozen preembryos. In that case the court said

“[d]isputes involving the disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed.”

This decision has been applied in subsequent cases in Washington, and I think it stands for the clear proposition that, generally speaking, the contract will control. If there’s no contract provision on point, the court will make its best judgment about what to do based on the relative circumstances of the parties.

Okay, so what happens if the either the contract or a court allows one party to keep and use the pre-embryos? In a rare case of the law being clear, RCW 26.26.725(1) provides that

So that’s the good news. If you lose, as long as you don’t explicitly consent to being the child’s legal parent, you shouldn’t be on the hook for child support. That also means, of course, that you cannot sue for visitation either.

I think this leads to three quick best practices if people are considering assisted reproduction:

First, talk to each other! It’s always easier to make decisions about bad things when things are going well. Decide in advance what you want to happen in the event that you separate before the process is complete or before you use all of your pre-embryos.

Second, put it in writing. This seems silly, but make sure that whatever you decide is included in the agreement you have with the clinic.

Third, if, for whatever reason, you cannot include it in the agreement you have with the clinic, seek the advice of a qualified attorney who can help you draft an agreement before you start the process.

Case Citations:

Litowitz v. Litowitz, 146 Wn.2d 514, 520-21, 48 P.3d 261, 264 (2002) amended sub nom. In re of Marriage of Litowitz, 53 P.3d 516 (Wash. 2002)Davis v. Davis, 842 S.W.2d 588, 597 (Tenn.1992)