Litowitz v. Litowitz

• Decision Date: 13 June 2002
• Docket Number: No. 70413-9.,70413-9.
• Parties: In re the Marriage of David J. LITOWITZ, Respondent, v. Becky M. LITOWITZ, Petitioner.
• Court: Washington Supreme Court

48 P.3d 261

146 Wash.2d 514

In re the Marriage of David J. LITOWITZ, Respondent, v. Becky M. LITOWITZ, Petitioner.

No. 70413-9.

Supreme Court of Washington, En Banc.

June 13, 2002.

Colleen Grady, Attorney at Law, Tacoma, Attorneys For Petitioner/Appellant.

Adams & Adams, Barton Adams, Tacoma, Attorneys For Appellee/Respondent.

Patricia Novotny, Attorney at Law, Seattle, Amicus Curiae on Behalf of Northwest Women's Law Center.

SMITH, J.

Petitioner Becky M. Litowitz seeks review of a decision of the Court of Appeals, Division Two, which affirmed an order of the Thurston County Superior Court in favor of Respondent David J. Litowitz in a dissolution action in which Respondent was awarded two cryopreserved¹ preembryos.² The Court of Appeals affirmed the trial court and awarded the preembryos to Respondent.³ This court granted review. We reverse.

QUESTIONS PRESENTED

The questions presented in this case are: (1) whether the Court of Appeals was correct when it affirmed a Superior Court award of two cryopreserved preembryos to Respondent David J. Litowitz in a parenting plan in a dissolution action and (2) whether a motion by Respondent David J. Litowitz to submit additional evidence on review should be granted.

STATEMENT OF FACTS

On February 27, 1982 Petitioner Becky M. Litowitz and Respondent David J. Litowitz were married.⁴ Respondent adopted Petitioner's two children from a previous marriage.⁵ On July 15, 1980, prior to their marriage, Petitioner and Respondent had a child together, Jacob Litowitz.⁶ Shortly after Jacob was born Petitioner Litowitz had a hysterectomy leaving her unable to produce eggs or to naturally give birth to a child.⁷

Petitioner and Respondent decided to have another child through in vitro fertilization.⁸ They sought the services of the Center for Surrogate Parenting, Loma Linda University Gynecology and Obstetrics Medical Group, in Loma Linda, California.⁹ Five preembryos were created with eggs received from an egg donor.¹⁰ The eggs were fertilized by Respondent Litowitz' sperm.¹¹ Three of the five preembryos were implanted in a surrogate mother, producing a female child, M., who was born January 25, 1997.¹² The two remaining preembryos were cryopreserved and stored in the clinic in Loma Linda, California.¹³

Petitioner and Respondent entered into a contract in Beverly Hills, California with the egg donor. The contract was signed by Petitioner Becky M. Litowitz on March 20, 1996, by Respondent David J. Litowitz on March 21, 1996¹⁴ and by the egg donor, J.Y., and her husband, E.Y., on April 1, 1996.¹⁵ The contract defined Petitioner as the "Intended Mother" and Respondent as the "Natural Father."¹⁶ The "Intended Mother" and "Natural Father" are further defined as the "Intended Parents."¹⁷ The egg donor contract provided in part:

PARAGRAPH 13

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.¹⁸

Respondent and Petitioner entered into two contracts with the Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California. One, a consent and authorization for preembryo cryopreservation (freezing) following in vitro fertilization, dated March 25, 1996, provided for freezing the preembryos.¹⁹ The other was an agreement and consent for cryogenic preservation (short term), dated March 25, 1996.²⁰

The consent and authorization for preembryo cryopreservation contract stated in part:

LEGAL STATUS AND DISPOSITIONAL CHOICES

We have been advised and understand that the legal status of the frozen preembryos has not been fully determined. In this regard, we acknowledge that we have been advised to seek independent legal counsel concerning our respective rights with regard to each preembryo placed in cryopreservation. We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our pre-embryos will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our pre-embryos, we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our preembryos.

We are aware that for a variety of reason [sic], (e.g. our choice, death of both of us, our achieving our desired family size) one or more pre-embryos may remain frozen and will not be wanted or needed by us. By this document, we wish to provide the Center with our mutual direction regarding disposition of our pre-embryos upon the occurrence of any one of the following four (4) events or dates:

A. The death of the surviving spouse or in the event of our simultaneous death.

B. In the event we mutually withdraw our consent for participation in the cryopreservation program.

C. Our pre-embryos have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agrees, at our request, to extend our participation for an additional period of time.

D. The Center ceases its in vitro fertilization and cryopreservation program.

At the earliest of the above-mentioned events or dates, we authorize and request that one of the following options be utilized for the disposition of our pre-embryos remaining in cryopreservation:

(1) That our pre-embryos be donated to another infertile couple (who shall remain unknown to all parties concerned), selected by the attending physician and/or the medical director of the Program, in which case we would relinquish any and all claim of maternal and/or paternal right to the donated pre-embryos;

(2) That our pre-embryos be donated for approved research and/or investigation;

(3) That our pre-embryos be thawed but not allowed to undergo further development;

(4) That our pre-embryos be disposed of in accordance with the best judgement [sic] of the professional staff of the Center.²¹

Petitioner and Respondent indicated their "desire for the ultimate disposition of [their] pre-embryos" by writing in longhand in the space provided on the contract "# 3—That our pre-embryos be thawed but not allowed to undergo further development."²² Following that statement and the signatures of the Litowitzes, the contract stated, "We agree that this option selection is binding upon us until such time as it is changed, in writing, by our joint direction."²³

Petitioner and Respondent separated before their daughter, M., was born.²⁴ In the dissolution proceedings in the Pierce County Superior Court, Respondent on October 21, 1998 indicated his wish to put the remaining preembryos up for adoption.²⁵ In those proceedings Petitioner on October 26, 1998 indicated her wish to implant the remaining preembryos in a surrogate mother and bring them to term.²⁶ On December 11, 1998 the trial court, the Honorable Waldo F. Stone, awarded the preembryos to Respondent David J. Litowitz based upon the "best interest of the child."²⁷ The order signed by Judge Stone provided in part:

DISPOSITION OF PREEMBRYOS: 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.²⁸

On December 11, 1998, Judge Stone also issued an order staying the order on preembryos and the restraining order on Petitioner.²⁹ The order prevented Petitioner from removing or in any way altering the status of the preembryos until final judgments including "any and all appeals" are entered in the action.³⁰ On January 7, 1998 the court, under a stipulation, appointed Steve Downing to serve as guardian ad litem for the two preembryos.³¹

In affirming the trial court, the Court of Appeals concluded the contracts signed by Petitioner and Respondent in California did not require Respondent to continue with their family plan to have another child and that Respondent's right not to procreate compelled the court to award the preembryos to him.³²

On November 16, 2000 Petitioner Becky M. Litowitz sought review by this court³³ which was granted on April 12, 2001.³⁴

On May 8, 2001 Respondent David J. Litowitz filed a motion to allow additional evidence on review.³⁵ He indicated the evidence related to (1) Petitioner Litowitz' drug use discovered after the final decree of dissolution and parenting plan which resulted in modification of the parenting plan designating Respondent David J. Litowitz as the primary residential parent for M.; and (2) a report that Petitioner Litowitz attempted to murder Respondent by paying a third party to have him killed.³⁶ Respondent asked this court to remand this matter to the trial court for testimony on the suitability of Petitioner to be a parent.³⁷ In the alternative, he asked this court to consider affidavits filed in the Pierce County Superior Court in the child custody modification action.³⁸

DISCUSSION

CONTRACTUAL ISSUES

This is the first case in which this court has been asked to resolve a dispute over disposition of frozen preembryos in a dissolution action. There is limited case law in other jurisdictions involving...