Baby contracts.

• Author: Kwok, Chi T. Steve
• Position: Case Note

Litowitz v. Litowitz, 10 P.3d 1086 (Wash. Ct. App. 2000)

The growing use of in vitro fertilization (IVF) procedures(1) raises a host of troubling legal issues. What should courts do with previously produced preembryos when a couple divorces after the IVF procedure and the parties cannot agree on the preembryos' disposition? Courts and commentators have so far reached different conclusions.(2) Litowitz v. Litowitz(3) complicates the picture even further.

In Litowitz, unlike most IVF cases, the eggs used in the procedure belonged not to the wife, Becky Litowitz, but to a third party who donated her eggs to the Litowitzes for use in the IVF procedure. The donated eggs were combined with the sperm of the husband, David Litowitz, to produce preembryos, which were then implanted into the body of a fourth party--the surrogate mother. The procedure did not involve Becky Litowitz's participation, although she and David would become the legal parents of any resulting child. Standing in the middle of this complicated arrangement was an additional fifth party--the medical clinic.

Luckily, the procedure worked, and baby Micah was born. Unfortunately, the couple soon separated. In the marriage dissolution, Becky wanted the court to award the remaining frozen preembryos to her for further implantation in a surrogate. David, on the other hand, did not want to be thrust into an unwanted parenting role and preferred that the preembryos be awarded to him so that he could put them up for out-of-state adoption. The Washington Court of Appeals ruled in David's favor. After finding that there was no agreement governing the dispute, the court adopted a balancing test and found that David's interests were weightier. He was the only genetic progenitor, and courts are generally reluctant to force any party to become a parent.

Focusing on David's rights as against Becky's, the court's opinion is hard to fault. However, Litowitz presents a set of facts that warrants a closer look. The large number of parties involved in some IVF procedures makes potential disputes extremely hard to disentangle. In such situations, the desirability of ex ante contracting becomes especially obvious. For numerous reasons, however, parties are loathe to contract in the IVF context. This Case Note analyzes the reasons for this reluctance and offers a proposal that maximizes contracting incentives. In brief, I argue that IVF clinics should be assessed a "court user fee" whenever judicial intervention is needed to resolve IVF disputes, unless the particular issues have been adequately anticipated in the contract beforehand. As a first step, I explore the problems that arise when there is no contract.

I

As the Litowitz court acknowledged, the case was actually much more complicated than it first appeared, because the interests of the egg donor--who contributed genetic materials and thus had a much stronger claim than Becky--diverged sharply from David's interests. The egg donor in Litowitz did not want David to put the preembryos up for out-of-state adoption. "In the event that the court fails to award the preembryos to Becky," she declared in a motion to the court, "I insist that the court award the preembryos to me or return the eggs to me in accordance with the contract."(4) The court was able to avoid dealing squarely with the egg donor's interests and how her rights ought to be balanced because she was not a party to the lawsuit. But the question could not have been avoided if she had asserted her rights.

Making matters worse, the contract the egg donor made with the Litowitz couple before she donated her eggs to them was by no means clear and did not contemplate dissolution of the Litowitzes' marriage. As the court noted, the contract only made reference to "eggs." The eggs no longer existed, however. The court wrote that the eggs "have been fertilized and are now preembryos. Thus, the egg donor's request that the `eggs' be returned to her ... cannot be met. And nothing in the contract controls disposition of the preembryos or requires the egg donor's consent to disposition of the preembryos."(5) Therefore, if she had asserted her fights, the court could not have simply interpreted the contract. No provision was directly on point.

Unfortunately, the question may not be amenable to judicial resolution in the typical, straightforward fashion. In previous cases, courts were often able to resolve disputes by adopting a crisp, bright-line rule that strongly favored the party who did not want to procreate.(6) In cases like Litowitz, however, this' bright-line approach is inapplicable. David, unlike the husbands in other cases, was not against the use of the preembryos. Instead, he wanted to put them up for adoption. The conflict was not one between the right to procreate and the right not to procreate. Rather, the conflict was more akin to a custody battle.

II

The multiparty scenario in Litowitz...