217 A.3d 977
Conn.2019Background
- Jessica Bilbao and Timothy Goodwin (married) underwent IVF; several pre-embryos were cryopreserved and one led to a child.
- The couple signed a clinic storage/consent form that included checkbox options for disposition upon death or divorce; they checked, initialed, and signed the option to have remaining pre-embryos discarded if they divorced.
- The couple later divorced; Bilbao sought enforcement of the storage agreement (discard), Goodwin sought to preserve or donate the pre-embryos, claiming he changed his mind and challenging enforceability.
- The trial court held the checkbox storage agreement unenforceable (lack of consideration; characterized as a questionnaire) and, treating the pre-embryos as marital property, awarded them to Bilbao after balancing interests.
- The Connecticut Supreme Court held that courts should apply the contractual approach first, concluded the storage agreement was enforceable (offer/acceptance and consideration via mutual gamete contribution and clinic storage), reversed the trial court’s conclusion on enforceability, and remanded with direction to order disposition in accordance with the parties’ agreement; it declined to decide the broader question whether pre-embryos are "human life" for other legal purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal framework for disposition of pre-embryos on divorce | Enforce parties' advance agreement; contractual approach should be first step | Courts should protect right to preserve embryos; balancing or preservation favored absent contract | Contractual approach is the appropriate first step when an enforceable agreement exists |
| Enforceability of the parties' clinic storage agreement (checkbox form) | Agreement is valid: offer/acceptance; signatures, initials and gamete contributions manifest assent; exchange of promises is consideration | Form was a mere questionnaire; no consideration; checkbox format shows lack of serious choice | Agreement is enforceable: there was offer/acceptance and consideration (mutual promises to contribute gametes; clinic’s storage) and checkbox format does not invalidate it |
| Whether a pre-embryo is "property" or a human life requiring a presumption in favor of preservation | Not necessary to decide because contractual term governs disposition | Claims that pre-embryo is human life and thus not property or deserving presumption to preserve | Court declined to resolve whether pre-embryo is a human being (insufficient record) and rejected related arguments premised on absence of an enforceable contract |
| Remedy/disposition | Enforce the discard clause in the storage agreement | Preserve or donate embryos because defendant changed his mind | Case remanded with direction to order disposition according to the storage agreement (i.e., discard) |
Key Cases Cited
- Kass v. Kass, 91 N.Y.2d 554 (N.Y. 1998) (endorsing enforcement of progenitors' advance agreements on embryo disposition)
- In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018) (court looks first to any enforceable agreement regarding pre-embryo disposition)
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (balancing approach and recognition of progenitors' decision-making authority)
- J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (New Jersey adopted balancing approach as primary method)
- In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003) (contemporaneous mutual consent approach: both donors must consent at time of disposition)
- Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002) (treating written embryo agreements as enforceable between parties and clinic)