Jocelyn P. v. Joshua P.

Decision Date29 April 2021
Docket NumberNo. 2125, Sept. Term, 2019,2125, Sept. Term, 2019
Citation250 Md.App. 435,250 A.3d 373
CourtCourt of Special Appeals of Maryland

Argued by: Debra B. Cruz (Shannon L. Boisseau, Levin & Gann PA, on the brief), Towson, MD, for Appellant.

Argued by: Maureen T. Beery (Cordell Law, LLP, on the brief), Baltimore, MD, for Appellee.

Panel: Kehoe, Arthur, Leahy, JJ.

Leahy, J.

For nearly half a century,1 in vitro fertilization ("IVF") has offered couples who are unable to conceive naturally the ability to have biological children. Still, the law governing frozen pre-embryos created through this process remains unsettled.2 As a matter of first impression in Maryland, we examine how to determine the rights of parties, upon dissolution of their marriage or partnership, in a pre-embryo that they jointly created and cryopreserved.

Jocelyn P. and Joshua P. signed and initialed a form "Agreement and Informed Consent for In Vitro Fertilization, Intracytoplasmic Sperm Injection, Assisted Hatching and Embryo Freezing" ("IVF Contract") with the Fertility Center of Maryland ("FCM") after Jocelyn was diagnosed with primary infertility and the couple was unable to have children through other means. Through the IVF process, Joshua and Jocelyn produced three pre-embryos. The first pre-embryo was lost due to miscarriage; the second was successfully implanted, resulting in the birth of a child in 2016; and the third and final pre-embryo was kept frozen at FCM.

After the parties separated, they sought dissolution of the marriage and reached a settlement on all matters, including custody of their child and property disposition, with one exception. They could not agree on what to do with the remaining cryopreserved pre-embryo. Jocelyn wanted the pre-embryo for implantation, whereas Joshua wanted the pre-embryo either destroyed or donated. After an evidentiary hearing and oral argument, on November 20, 2019, the Circuit Court for Baltimore County ordered that the pre-embryo be jointly awarded to the parties "such that no transfer, release, or use of the frozen embryo[3 ] shall occur without the signed authorization of both parties."

Jocelyn appealed and presents four questions for our review, which we have consolidated and recast as follows:

1. Should the circuit court apply a balancing-of-interests approach, adopted by a majority of states, in the absence of an express agreement between the progenitors about what to do with their jointly created frozen pre-embryos?
2. Did the circuit court err in determining that the IVF Contract was unambiguous and controlled the disposition of the remaining frozen pre-embryo?
3. Did the circuit court abuse its discretion under its alternative determination under the balancing-of-interests test that Joshua's interest to avoid procreation outweighed Jocelyn's interest in procreation by implanting the remaining frozen pre-embryo?

We agree with those courts that recognize the special respect due cryopreserved pre-embryos in light of their potential for human life as well as the fundamental and coextensive rights of their progenitors to decide "whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Consistent with the approaches adopted by other states that have addressed the issue, we hold that if, upon dissolution of their marriage or partnership, the parties cannot reach agreement about what to do with any remaining pre-embryos that were cryopreserved during their relationship, our courts should first "look[ ] to the preference of the progenitors" in any prior agreement expressing their intent. Davis v. Davis , 842 S.W.2d 588, 642 (Tenn. 1992).

In the absence of an express agreement, courts should seek to balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party's bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant to the parties’ unique situation. In re Marriage of Rooks , 429 P.3d 579, 593-94 (Colo. 2018). We further agree with our sister states that hold it is impermissible for a court to consider financial and economic distinctions between the parties; the number of existing children; or "reasonable alternatives," such as adoption, available to the party seeking to become a genetic parent. Id.

When analyzing a prior agreement, courts should take particular care to ensure that it manifests the progenitors’ actual preferences. Given the pervasiveness of third-party informed consent agreements, we emphasize that the progenitors—not fertility centers—must expressly and affirmatively designate their own intent. While we do not condemn all form contracts to inconsequence in this context, boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as an express agreement for this purpose. The court should incorporate such form contracts within the balancing factors set out above, to be considered alongside other evidence. We conclude that such a blended contractual/balancing-of-interests approach is consistent with Maryland law.

For the reasons expressed in this opinion, we reject the mutual contemporaneous consent approach employed by a minority of states, and upon which the circuit court based its decision in this case. We further hold that the circuit court erred in its determination that the IVF Contract evinces Jocelyn and Joshua's preference regarding what to do with their cryopreserved pre-embryo in the event of their divorce. Accordingly, we vacate the judgment of the circuit court and remand for further proceedings. We instruct the court to consider whether, based on the testimony presented, Jocelyn and Joshua had an express oral agreement that they would "give the embryo the opportunity for life" and whether that agreement was intended to survive the dissolution of their marriage. If the court determines that there was no oral or written agreement that expressly delineated the parties’ intentions, then the court must balance the parties’ interests under the framework set out above and further described in this opinion.


The parties were in their twenties when they married in July 2010. Jocelyn was a board-certified nurse, and Joshua was a paramedic. During the first two years of their marriage, they attempted to conceive a child naturally, without success. In August of 2012, they consulted with Shady Grove Fertility Reproductive Science Center ("Shady Grove"), and after extensive infertility testing, Jocelyn was diagnosed with (1) "[p]rimary infertility" and (2) "[p]ossible unexplained infertility."

Jocelyn and Joshua decided to pursue intrauterine insemination ("IUI") at Shady Grove in the fall of 2013.4 Jocelyn had three IUI procedures on September 30, 2013, November 23, 2013, and December 24, 2013. The IUI procedures were accompanied by numerous doctor visits, blood draws and tests, ultrasounds, and shots of hormones to increase egg production and prompt ovulation. The three IUI procedures were unsuccessful.

After another year of unsuccessful attempts to conceive without assistance, on January 21, 2015, Jocelyn and Joshua consulted the Fertility Center of Maryland ("FCM") to explore additional options to conceive a child. After further examination, FCM diagnosed Jocelyn with "[p]rimary infertility." She underwent a hysteroscopy, dilation, and curettage procedure to increase her chance of pregnancy. Jocelyn then underwent four additional IUI procedures between April and June, 2015. Unfortunately, these procedures also were unsuccessful. After the last unsuccessful IUI, with consultation of FCM, Jocelyn and Joshua elected to attempt to conceive through IVF.5

The IVF Contract

The parties executed the IVF Contract on September 10, 2015. The IVF Contract stated that the "main goal of IVF is to allow a patient the opportunity to become pregnant using her own eggs and sperm from her partner or from a donor." It described the "IVF process from start to finish,"6 including "the risks that th[e] treatment might pose to you and your offspring." For example, risks associated with the initial removal of the eggs from the ovary include "infection" and "bleeding," which, if "major" will "frequently require surgical repair and possibly loss of the ovary." The IVF Contract also warned that "it is possible to damage other intra-abdominal organs during the egg retrieval. Previous reports in the medical literature have noted damage to the bowel, appendix, bladder, ureters, and ovary."

Despite the multiple medications involved in the treatment, the IVF Contract warned that the egg-retrieval process may be unsuccessful:

Even with pre-treatment attempts to assess response, and even more so with abnormal pre-treatment evaluations of ovarian reserve, the stimulation may result in very few follicles developing. The end result may be few or no eggs obtained at egg retrieval, switching to intrauterine inseminations or even cancellation of the treatment cycle prior to egg retrieval.

Section A.2.c. of the IVF Contract addressed cryopreservation. The subsection, offset in capital letters and titled "OWNERSHIP AND DISPOSITION OF FROZEN EMBRYOS," stated, in pertinent part:

It is the policy of FCM that embryos produced by the joining of eggs and sperm are subject to disposition in a manner mutually agreed upon by the partners. Where donor eggs or sperm are being used, the embryos are subject to disposition in a manner mutually agreed upon by the couple receiving IVF services at the site, except in the cases of divorce. In the event of a divorce if one of the

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