In re Marriage of Witten

• Decision Date: 17 December 2003
• Docket Number: No. 03-0551.,03-0551.
• Citation: 672 N.W.2d 768
• Parties: In re the MARRIAGE OF Arthur Lee WITTEN III and Tamera Jean Witten, Upon the Petition of Arthur Lee Witten III, Appellee, and Concerning Tamera Jean Witten, Appellant.
• Court: Iowa Supreme Court

672 N.W.2d 768

In re the MARRIAGE OF Arthur Lee WITTEN III and Tamera Jean Witten,

Upon the Petition of Arthur Lee Witten III, Appellee, and

Concerning Tamera Jean Witten, Appellant.

No. 03-0551.

Supreme Court of Iowa.

December 17, 2003.

Julie A. Schumacher of Mundt, Franck & Schumacher, Denison, for appellant.

Reed H. Reitz of Reimer, Lohman & Reitz, Denison, for appellee.

TERNUS, Justice.

The primary issue raised on appeal of the district court's decree in this dissolution action is whether the court properly determined the rights of Arthur (known as Trip) and Tamera Witten with respect to the parties' frozen human embryos stored at a medical facility. While we agree with Tamera that the informed consent signed by the parties at the request of the medical facility does not control the current dispute between the donors over the use or disposition of the embryos, we reject Tamera's request that she be allowed to use the embryos over Trip's objection. Therefore, we affirm the trial court's order that neither party may use or dispose of the embryos without the consent of the other party.

On Trip's cross-appeal, we modify the court's property division, eliminating the cash payment from Trip to Tamera and substituting an equivalent portion of Trip's retirement account. We affirm the trial court's award of trial attorney fees to Tamera, a matter also challenged on Trip's cross-appeal.

I. Background Facts and Proceedings.

The appellee, Arthur (Trip) Witten, and the appellant, Tamera Witten, had been married for approximately seven and one-half years when Trip sought to have their marriage dissolved in April 2002. One of the contested issues at trial was control of the parties' frozen embryos. During the parties' marriage they had tried to become parents through the process of in vitro fertilization. Because Tamera was unable to conceive children naturally, they had eggs taken from Tamera artificially fertilized with Trip's sperm. Tamera then underwent several unsuccessful embryo transfers in an attempt to become pregnant. At the time of trial seventeen fertilized eggs remained in storage at the University of Nebraska Medical Center (UNMC).¹

Prior to commencing the process for in vitro fertilization, the parties signed informed consent documents prepared by the medical center. These documents included an "Embryo Storage Agreement," which was signed by Tamera and Trip as well as by a representative of UNMC. It provided in part:

Release of Embryos. The Client Depositors [Trip and Tamera] understand and agree that containers of embryos stored pursuant to this agreement will be used for transfer, release or disposition only with the signed approval of both Client Depositors. UNMC will release the containers of embryos only to a licensed physician recipient of written authorization of the Client Depositors.

The agreement had one exception to the joint-approval requirement that governed the disposition of the embryos upon the death of one or both of the client depositors. Another provision of the contract provided for termination of UNMC's responsibility to store the embryos upon several contingencies: (1) the client depositors' written authorization to release the embryos or to destroy them; (2) the death of the client depositors; (3) the failure of the client depositors to pay the annual storage fee; or (4) the expiration of ten years from the date of the agreement.

At trial, Tamera asked that she be awarded "custody" of the embryos. She wanted to have the embryos implanted in her or a surrogate mother in an effort to bear a genetically linked child. She testified that upon a successful pregnancy she would afford Trip the opportunity to exercise parental rights or to have his rights terminated. She adamantly opposed any destruction of the embryos, and was also unwilling to donate the eggs to another couple.

Trip testified at the trial that while he did not want the embryos destroyed, he did not want Tamera to use them. He would not oppose donating the embryos for use by another couple. Trip asked the court to enter a permanent injunction prohibiting either party from transferring, releasing, or utilizing the embryos without the written consent of both parties.

The district court decided the dispute should be governed by the "embryo storage agreement" between the parties and UNMC, which required both parties' consent to any use or disposition of the embryos. Enforcing this agreement, the trial court enjoined both parties "from transferring, releasing or in any other way using or disposing of the embryos ... without the written and signed approval and authorization" of the other party.

Tamera has appealed the trial court's order, challenging only the court's resolution of the parties' dispute over the fertilized eggs. She claims the storage agreement is silent with respect to disposition or use of the embryos upon the parties' dissolution because there is no provision specifically addressing that contingency. Therefore, she argues, the court should have applied the "best interests" test of Iowa Code chapter 598 (2001) and, pursuant to that analysis, awarded custody of the embryos to her. She makes the alternative argument that she is entitled to the fertilized eggs due to her fundamental right to bear children. Finally, Tamera claims it would violate the public policy of this state if Trip were allowed to back out of his agreement to have children. She claims such an agreement is evidenced by his participation in the in vitro fertilization procedure.

Trip has filed a cross-appeal. He claims the court erred in awarding Tamera a cash payment to equalize the property division rather than simply awarding her a share of his retirement account. He also contends the trial court abused its discretion in ordering Trip to pay $1000 toward Tamera's attorney fees.

II. Scope of Review.

We review claimed error in dissolution-of-marriage decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999)

. Although we decide the issues raised on appeal anew, we give weight to the trial court's factual findings, especially with respect to the credibility of the witnesses. Id. at 51. An award of attorney fees is reviewed for an abuse of discretion. See In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996).

III. Disposition of Embryos.

A. Scope of storage agreement. We first consider Tamera's contention that the storage agreement does not address the situation at hand. As noted earlier, the agreement had a specific provision governing control of the embryos if one or both parties died, but did not explicitly deal with the possibility of divorce. Nonetheless, we think the present predicament falls within the general provision governing "release of embryos," in which the parties agreed that the embryos would not be transferred, released, or discarded without "the signed approval" of both Tamera and Trip. This provision is certainly broad enough to encompass the decision-making protocol when the parties are unmarried as well as when they are married.

The only question, then, is whether such agreements are enforceable when one of the parties later changes his or her mind with respect to the proper disposition of the embryos. In reviewing the scarce case law from other jurisdictions on this point, we have found differing views of how the parties' rights should be determined. There is, however, abundant literature that has scrutinized the approaches taken to date. Some writers have suggested refinements of the analytical framework employed by the courts thus far; some have proposed an entirely new model of analysis. From these various sources, we have identified three primary approaches to resolving disputes over the disposition of frozen embryos, which we have identified as (1) the contractual approach, (2) the contemporaneous mutual consent model, and (3) the balancing test.

Tamera's argument that her right to bear children should override the parties' prior agreement as well as Trip's current opposition to her use of the embryos resembles the balancing test. As for Tamera's alternative argument, we have found no authority supporting a "best interests" analysis in determining the disposition of frozen embryos. Nonetheless, we will first consider whether chapter 598 requires application of that analysis under the circumstances presented by this case. Then, we will discuss and consider the three approaches suggested by decisions from other jurisdictions and the literature on this subject.

B. "Best interests" test. Iowa Code section 598.41 sets forth various standards governing a court's determination of the custody of the parties' children in a dissolution case, including the requirement that any custody award reflect "the best interest of the child." Tamera contends the embryos are children and their best interest demands placement with her. Trip argues the frozen embryos are not children and should not be considered as such for purposes of applying chapter 598 in dissolution actions.

In resolving this disagreement, we note initially that we are not called upon to determine the religious or philosophical status of the fertilized eggs. See generally Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 66-68 (1999) (noting three main views regarding the "moral status" of the human embryo) [hereinafter "Coleman"]. Rather, we are merely required to decide whether the embryos have the legal status of children under our dissolution-of-marriage statute.

Our first step is to consider the legislature's definition of "child" as that term is used in chapter 598. The term "minor child" is defined in section 598.1(6) as "any person under legal age." Iowa Code § 598.1(6) (emphasis added). Whether frozen embryos fall within this definition is an issue of first impression for this court.

While we have not considered...