Maryland Appellate Ruling Confirms Continued Complexity Of Embryo Clashes

On June 26, 2023, the Appellate Court of Maryland issued an unreported opinion in an embryo dispute. Put simply, the court held that, while obviously not preferred, an oral agreement can be binding when it comes to deciding the future of a couple's embryos. So that's a useful datapoint to know, as far as it goes. But on a larger scale, the ruling demonstrates the continued complexity that courts invariably face in adjudicating disputes from two or more parties over the right to procreate -- or not procreate -- with given embryos.

The facts of the case started simply enough. A once-married couple, Jocelyn P. and Joshua P., had attempted to conceive a child together starting around 2010. After failed attempts on their own and failed less-invasive treatments, the couple turned to in vitro fertilization (IVF). Their efforts resulted in three healthy embryos. The first embryo resulted in a pregnancy but was followed by a miscarriage. The second successfully resulted in a pregnancy and the welcoming of the couple's son. The third embryo remains cryopreserved to this day and is the subject of the couple's dispute.

Jocelyn P. seeks to use the remaining embryo to attempt conception; Joshua P. wishes for the embryo to be destroyed and never used. Jocelyn P. argued that due to her religious views, as well as those of Joshua P.'s, they originally (orally) agreed that they would give each embryo a chance to be born, "no matter what." Joshua P. did not directly contradict Jocelyn's statements concerning the parties' initial intent but argued that the conversation had been contemplated within the confines of their healthy marriage, and they did not specifically discuss the future of the embryos in the case of divorce.

Three Approaches

The Court of Appeals of Maryland reiterated that embryos are not merely property but instead that their potential for human life entitles them to special respect. The court concurred with those "courts that recognize ... the fundamental rights of their progenitors to decide 'whether to bear or beget a child.'" (quoting the pre-Roe Supreme Court case of Eisenstadt v. Baird). As a side note, it's nice to see courts citing reproductive rights cases for this proposition, despite the U.S. Supreme Court's reversal of Roe in 2022, in the case of Dobbs v. Jackson Women's Health Organization.

Against that backdrop, the court analyzed the pros and cons of the three different approaches used by various jurisdictions when assessing embryo disputes between separating couples.

The contractual approach. With this approach, courts first look to any valid prior agreement between the parties regarding the disposition of cryopreserved embryos. If such an agreement exists, enforce such agreement. One key benefit of this approach, the court recognized, is to "minimize misunderstandings and maximize procreative liberty, by reserving to the progenitors the authority to make what is the in the first instance a quintessentially personal, private decision." On the other hand, the court acknowledged that the approach binds individuals to previous obligations entered into long ago, in different circumstances, even if their priorities or values have changed with time. For married couples, the most common change of circumstances is a divorce, where the prospect of children generally disappears other than in the context of saved genetic material.

The contemporaneous mutual consent approach (minority approach). With this approach, the courts look to the parties' current preferences, requiring mutual consent, and therefore allowing a party to change their mind about the disposition of any embryo. That approach indefinitely allows a person to withdraw from an agreement that "no longer reflects his or her current values or wishes." In addition to letting people out of their agreements, this approach inherently favors the individual who does *not* want to reproduce, and in fact gives that individual complete bargaining power, regardless of the circumstances of the case or the individuals involved.

The balancing test approach. While put in its own category, the balancing test is generally used as a backstop, and only after the contractual approach has failed -- meaning that the parties don't have a valid contractual agreement that addresses the situation. The Court of Appeals of Maryland explains that "at its core, the balancing approach seeks to weigh 'two aspects of procreational autonomy -- the right to procreate and the right to avoid procreation' along with the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by different resolutions."

The contractual approach. With this approach, courts first look to any valid prior agreement between the parties regarding the disposition of cryopreserved embryos. If such an agreement exists, enforce such agreement. One key benefit of this approach, the court recognized, is to "minimize misunderstandings and maximize procreative liberty, by reserving to the progenitors the authority to make what is the in the first instance a quintessentially personal, private decision." On the other hand, the court acknowledged that the approach binds individuals to previous obligations entered into long ago, in different circumstances, even if their priorities or values have changed with time. For married couples, the most common change of circumstances is a divorce, where the prospect of children generally disappears other than in the context of saved genetic material.The contemporaneous mutual consent approach (minority approach). With this approach, the courts look to the parties' current preferences, requiring mutual consent, and therefore allowing a party to change their mind about the disposition of any embryo. That approach indefinitely allows a person to withdraw from an agreement that "no longer reflects his or her current values or wishes." In addition to letting people out of their agreements, this approach inherently favors the individual who does *not* want to reproduce, and in fact gives that individual complete bargaining power, regardless of the circumstances of the case or the individuals involved.The balancing test approach. While put in its own category, the balancing test is generally used as a backstop, and only after the contractual approach has failed -- meaning that the parties don't have a valid contractual agreement that addresses the situation. The Court of Appeals of Maryland explains that "at its core, the balancing approach seeks to weigh 'two aspects of procreational autonomy -- the right to procreate and the right to avoid procreation' along with the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by different resolutions."

Like the majority of United States jurisdictions faced with this issue, the court concluded that a blended contractual/balancing-of-interests approach was the most consistent with Maryland law.

Rejecting The Clinic Form -- No Manifestation Of An Agreement

In 2021, the Appellate Court of Maryland had issued a ruling in the case, before remanding, or sending the case back down, to the lower courts. It previously directed the trial court to reassess the dispute, looking first to determine whether a prior agreement existed. But the court cautioned that when looking at clinic forms or similar documentation, courts should ensure that they manifest the parties' 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."

So here we have a hot tip for fertility centers in Maryland and elsewhere: make sure that your clinic embryo disposition forms are actually reflecting your patients' preferences -- not just giving you legal cover to act in your own discretion. The more customization and filling in of specific preferences by the patients, likely the better.

When the case originally came before the lower court several years ago, the judge looked to a clinic form that the parties had signed noting that "In the event of legal separation or divorce of the Clients, ownership and control of the Embryos stored with Cryobank are to be specified in a divorce decree or other legal binding document ... Absent such documentation, ownership will remain with both Clients." But like many standard forms, that language hardly answered the ultimate question. Despite that, the trial court ruled that pursuant to the written agreement, ownership must remain with both parties. The Appellate Court rejected that ruling, and held that the clinic form was merely boilerplate language and not a true manifestation of the parties' intentions. That's how we got to the question of whether an oral agreement matters.

Oral Agreement Prevails

This round, the Appellate Court of Maryland held that the trial court erred in rejecting the idea that the parties' prior oral agreement to give each embryo a chance "no matter what" did not control the disposition of the embryo. Instead, the Appellate Court of Maryland found that the oral agreement carried weight beyond the marriage, and was a valid, binding agreement.

So that's the final determination. At least as to control of the embryo. The question as to whether Joshua P. would be a legal parent of a resulting child from the embryo was sent back to the circuit court for consideration.

The lesson is clear. Couples going through IVF should have these conversations early, and with specificity. Consider all of the bad potential futures -- particularly divorce and death -- and document your decisions. And, not just self-servingly, it's preferable that these conversations take place with the help of an attorney. It's the best chance to avoid a similar roller coaster ride of embryo dispute judicial interpretation.

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.