Family Law

Embryo Wars: Beware Of Reliance On Fertility Clinic Forms

The more that a clinic consent form can accurately capture the patients’ true intent, the more likely that decision can be used to resolve a future dispute.

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It’s 2021. And couples turning to in vitro fertilization (IVF) to conceive is exceedingly common. In fact, 1.8% of all children born in the U.S. in 2018 were the result of IVF. So it’s no surprise, statistically, that there will be couples divorcing and fighting over frozen embryos. Courts will be making some pretty tough decisions. Of course, it doesn’t make things easier, or more predictable, that the United States lacks consensus even as to the basic questions of “what is an embryo?” and “when there is a dispute, how should we decide who gets the embryos?” Nonetheless, the Court of Special Appeal of Maryland is among the latest to take up the challenge. And that court gives an important warning as to the place fertility clinic forms should play in these disputes.

The Case

You might have heard of the COSA from the Serial Podcast-famous Adnan Syed case. But they handle much more than just criminal appeals. In our case, Jocelyn P. v. Joshua P., the fact pattern likely sounds familiar. In 2010, Jocelyn P., a nurse, married Joshua P., a paramedic. After a couple of years of unsuccessfully trying to conceive, they turned to a fertility clinic for assistance. Jocelyn P. underwent tests and procedures and numerous intrauterine insemination (IUI) attempts before doctors recommended that the couple’s best course would be to try IVF. Their IVF efforts resulted in three embryos. One was lost in a failed embryo transfer, and one resulted in the couple’s first child (yay!). When they divorced, one cryopreserved embryo remained. What should happen to it?

Jocelyn P. hopes to use the embryo for conception — feeling a personal responsibility to give her child, as she views the embryo, a chance at life. On the other hand, Joshua P. doesn’t want any more kids with his ex-wife. He desires for the embryo to be destroyed or donated to someone else going through fertility treatments.

Basic Problems

Even the term “embryo” is an issue in cases like these. In this case, as with several others, the court opts for the language “pre-embryo,” the more technical and accurate term to describe the bundle of cells resulting after egg fertilization and a few days of development. (Note: despite the “pre-embryo” term used in the opinion, I have opted here for the more colloquial term “embryo.”) Aside from semantics, jurisdictions across the U.S. are in disagreement as to what (pre-)embryos are. Louisiana, by statute, defines them as “juridical persons.” By contrast, case law defines them at times as property, or more commonly, as “quasi-property” or property with special characteristics.

Evolving Jurisprudence

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In the 61-page opinion, the court took a deep dive into the different methods of analyzing these disputes, generally divided into three categories: 1) contractual; 2) balancing-of-interests; and 3) contemporaneous mutual consent. A combination of the first two — look first to any contract between the parties, then, if that’s not helpful — balance the interests, has become a majority position. While the contemporaneous mutual consent method, which requires essentially that nothing can be done with disputed embryos unless both parties agree, has become the minority position in the United States.

The court looked to recent contractual/balancing-of-interests cases like the 2018 Rooks case issued by the Colorado Supreme Court. That case outlined various factors that courts should look to when balancing interests and, perhaps more importantly, what factors a court should *not* be permitted to look to. These banned factors include a party’s financial situation, the number of their existing children, and the potential availability of alternative paths to parenthood, like adoption. The Maryland Court of Special Appeals agreed with this approach, rejecting the contemporaneous mutual consent approach employed by the lower circuit court. Further, the court added important warnings as to the use of fertility consent form to determine agreement between the parties.

Clinic Consent Forms No Good?

In opting for the contractual/balancing-the-interests approach, the court looked first to evidence that the parties had previously consented to the disposition of their embryos. Joshua pointed to the language of the fertility consent form that both parties signed. The form stated that it is the policy of the clinic that embryos “produced by the joining of eggs and sperm are subject to disposition in a manner mutually agreed upon by the partners” (emphasis added). However, the documents then described how in the case of divorce (yes, like here) “if one of the partners produced the gametes (sperm or eggs) then the producer shall have the sole decision-making authority over the disposition of the embryos.” The consent form was silent as to what happens in the event of divorce if both partners are also “producers.” However, the consent form later had the parties make specific selections as to what should happen to the embryos “in the event of death or mental incapacity.” Each party chose for the other to receive all rights to determine embryo disposition in such situation.

The court rejected Joshua’s argument that the consent form language as to the clinic needing the parties’ mutual consent to determine future disposition could be interpreted as an agreement between the parties. Instead it warned that 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.” Moreover, “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.”

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The court found that considering form contracts should be considered with the balancing factors, along with other evidence. And it ultimately sent the case back to the circuit court to determine if the parties had entered an oral agreement, as argued by Jocelyn P., to “give the embryo the opportunity for life” intended to survive the parties’ divorce. If not, the circuit court was to follow the factor balancing test as laid out by the court.

Phew! Well, the ruling certainly didn’t simplify anything. But it offered an important warning as to reliance on fertility clinic forms. Boilerplate is so out. The more that a clinic consent form can accurately capture the patients’ true intent, the more likely that decision can be used to resolve a future dispute. Patient customization is in.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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