Litowitz v. Litowitz

• Decision Date: 17 October 2000
• Docket Number: No. 24223-1-II.,24223-1-II.
• Citation: 10 P.3d 1086,102 Wash.App. 934
• Court: Washington Court of Appeals
• Parties: David J. LITOWITZ, Respondent, v. Becky J. LITOWITZ, Appellant.

10 P.3d 1086

102 Wash.App. 934

David J. LITOWITZ, Respondent, v. Becky J. LITOWITZ, Appellant.

No. 24223-1-II.

Court of Appeals of Washington, Division 2.

October 17, 2000.

Colleen Allen Grady, Tacoma, for Appellant.

Kathryn J. Nelson, Tacoma, for Respondent.

ARMSTRONG, C.J.

Becky and David Litowitz, while married, contracted with an egg donor and an in vitro fertilization (IVF) clinic in an effort to produce a child, or children. David's sperm fertilized five donated eggs, which began cell division; three of these five "preembryos"¹ were implanted in a surrogate mother while the other two were cryopreserved.² The surrogate bore the Litowitz's child, Micah. By the time Micah was born, however, Becky and David had separated.

In the dissolution, Becky wanted the preembryos awarded to her for implanting in a surrogate, with the intent that Becky would be the primary residential parent for any resulting child. But the trial judge awarded the preembryos to David, who wanted to place the preembryos with an out-of-state couple. On appeal, Becky argues that the trial judge erred in applying a best-interests-of-the-child standard to the preembryos. Becky also argues that the trial court should have enforced the egg donor contract, which, according to Becky, compels an award of the preembryos to her.

We agree that the trial court erred in considering only the best interests of any child resulting from the preembryos. But we affirm, holding that David is not bound by contract to become a parent. Further, because David is the only progenitor before this court, he has the right to control the destiny of the preembryos. We affirm the award of the preembryos to David.

FACTS

Becky is the biological mother of Ann Marie (age 24) and Lucas (age 22). David adopted both of these children. Becky and David had one child together, Jacob, born in 1980. After Jacob's birth, Becky had a hysterectomy and was unable to give birth naturally or to be an egg donor.

Becky and David married in 1982 and wanted to have at least one more child together. After seeking help at the University of Washington, the Litowitzes were referred to the Center for Surrogate Parenting in California.³ In California, Becky and David contracted with an egg donor.

The egg donor contract, signed in California, is between the "intended parents" (David, the natural father, and Becky, the intended mother) and the egg donor and her husband. The "intended parents" are described as a "married couple" who intend to utilize the donated eggs and David's sperm to carry "a pregnancy to term through third party assisted reproduction." Any children were to be the children of the "intended parents." And under the egg donor contract, "child" includes "all children born pursuant to the terms and provisions of this Agreement, provided the parentage of the Child is determined pursuant to the terms of this agreement."⁴ The contract also provided:

All eggs produced by the Egg Donor pursuant to this Agreement shall be deemed the property of the Intended Parents and as such, the Intended Parents shall have the sole right to determine the disposition of said egg(s). In no event may the Intended Parents allow any other party the use of said eggs without express written permission of the Egg Donor.

Before beginning the IVF procedures, Becky and David entered into additional agreements with the Loma Linda University Gynecology & Obstetrics Medical Group, Inc. (the clinic). These agreements included consent for short term cryopreservation of David's sperm and consent for the cryopreservation of preembryos following IVF. Under a section entitled "Legal Status and Disposition Choices," the informed consent for freezing the preembryos provided:

We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our [preembryos] will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our [preembryos], we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our [preembryos]. (Emphasis added.)

The Litowitzes also agreed that under certain circumstances (e.g., death of both), any unused frozen preembryos would be thawed and not allowed to develop. But none of the listed circumstances included a marriage dissolution.

The donated eggs were then fertilized with David's sperm, producing five preembryos. Two of the preembryos were cryogenically frozen⁵ and three of them were implanted in a surrogate.⁶ The IVF and surrogacy resulted in the birth of Micah, now three years old. By a California court order, the Litowitzes were declared the legal parents of Micah before she was born.

By the time Micah was born in January 1997, Becky and David had separated. At trial, Becky asked that the preembryos be awarded to her under the terms of the egg donor contract. During opening argument, David's attorney said that David was "strongly opposed to bringing [the preembryos] to life." On direct examination, however, David stated that he preferred that the preembryos be put "up for adoption."⁷

The trial court ruled orally, awarding the preembryos to David, "with orders to use his absolute best effort for adoption to a two-person family outside of the state of Washington and, obviously, considering the donor in that, as ... required." The ruling was later reduced to a court order.⁸ The trial court applied a best-interests-of-the-child analysis in reaching its decision: "My decision on the preembryo has very little to do with property, very little to do with constitutional rights, everything to do with the benefit of the child."

Becky moved for reconsideration, incorporating the following declaration from the egg donor:⁹ In the event that the court fails to award the [preembryos] to [Becky], I insist that the court award the [preembryos] to me or return the eggs to me in accordance with the contract.

The trial court denied the motion for reconsideration.

ANALYSIS

A. Express and Implied Contracts

Becky argues that the egg donor contract should be enforced, reasoning that she, as one of the "intended parents," should be allowed to continue the procreation process. In a variation of her contract theme, Becky also argues that David should be estopped from donating the preembryos because both she and the egg donor relied upon the agreement that only the Litowitzes would use the preembryos. Becky relies, in part, on Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998).

Four jurisdictions have addressed the question of whether a contract addressing preembryo disposition is enforceable. Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), cert. denied, sub nom. Stowe v. Davis, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993); Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174; A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000); J.B. v. M.B., 331 N.J.Super. 223, 751 A.2d 613 (2000). In Davis, the parties had no written agreement but the court, in dicta, noted that such contracts should be enforced. Davis, 842 S.W.2d at 597. This dicta was cited with approval by the Kass court, which held that the parties' express contract controls the disposition of the preembryos. Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180, 182. In A.Z., the court held that even though there was an agreement between the husband and wife progenitors specifying that if they separate, the preembryos were to be given to the wife for implantation, such an agreement was unenforceable in part because the parties were separated, i.e., divorced. A.Z., 725 N.E.2d at 1057. Further, the A.Z. court stated that as a matter of public policy, "we would not enforce an agreement that would compel one donor to become a parent against his or her will." A.Z., 725 N.E.2d at 1057. Most recently, the J.B. court also held that a "contract to procreate is contrary to New Jersey public policy and is unenforceable." J.B., 751 A.2d at 619.

Becky argues that the parties had an express agreement with the egg donor, which, following Kass, should be enforced. In Kass, the husband and wife signed four consent forms. One form stated: "In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction;" and "[t]he possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes."¹⁰ Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 176. But, an addendum to the cryopreservation consent form provided that if the husband and wife were "unable to make a decision regarding the disposition of our stored, frozen pre-zygotes... [they may] be disposed of by the IVF Program." Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 176-77. After originally agreeing in the divorce action that the pre-zygotes be disposed of as provided in the consent form, the wife changed her mind and asked that the pre-zygotes be awarded to her for implantation. Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 177.

The New York court held that "[a]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding." Kass, 673 N.Y.S.2d 350,696 N.E.2d at 180. The question was whether the agreements were too ambiguous to be enforced. The court concluded that they were not, noting the consistent theme of the documents that disposition of the pre-zygotes was to be a joint decision. The court rejected the wife's argument that the "in the event of divorce" language required a court's decision.¹¹ Rather, this language required disposition by a property settlement. And the parties' inability to reach a settlement was an unforeseen circumstance that triggered the IVF donation language. Kas...