250 A.3d 373
Md. Ct. Spec. App.2021Background
- Jocelyn and Joshua underwent IVF and produced three pre-embryos: one miscarried, one implanted (resulting in a child), and one remained cryopreserved.
- They signed a clinic “IVF Contract” (form agreement) that included boilerplate disposition rules (mutual consent language, death/incapacity options, a five‑year storage notification/disposal clause).
- The couple separated and litigated divorce; they settled most issues but disagreed about the remaining frozen pre-embryo. The circuit court ordered the embryo jointly held, requiring both parties’ signed authorization for any use.
- Jocelyn appealed, arguing the IVF Contract did not unambiguously control and that, absent an express agreement, the court should apply a balancing‑of‑interests test favoring her because she lacks other reasonable means to achieve genetic parenthood.
- The Court of Special Appeals held that Maryland follows a blended contractual/balancing approach (adopting Davis and Rooks principles), rejected the contemporaneous mutual‑consent rule, found the IVF Contract ambiguous as to divorce when both parties are gamete providers, noted a subsequent Storage Agreement with Cryobank superseded the IVF Contract, vacated the judgment, and remanded to consider any express oral agreement and to apply the balancing factors correctly.
Issues
| Issue | Plaintiff's Argument (Jocelyn) | Defendant's Argument (Joshua) | Held |
|---|---|---|---|
| Proper legal framework for embryo disputes | Courts should first honor any express agreement; absent one, apply a balancing‑of‑interests test (Davis/Rooks) | The contractual approach controls here because the IVF Contract requires mutual consent for disposition | Court adopts a blended contractual/balancing approach; rejects contemporaneous mutual‑consent rule |
| Does the IVF Contract unambiguously dictate disposition on divorce when both parties provided gametes? | IVF Contract is ambiguous and does not resolve disposition when both partners are gamete providers | IVF Contract clearly requires mutual consent and therefore governs disposition | Contract is ambiguous on that point; boilerplate clinic language cannot substitute for progenitors’ express intent |
| Did the trial court properly apply the balancing test and favor Joshua (avoidance of procreation)? | Jocelyn: she lacks reasonable alternatives (age, prior infertility, IVF toll) so balancing should favor her | Joshua: Jocelyn can still undergo IVF; he has burdens of unwanted parenthood and already shares a child | Trial court erred in parts of its balancing analysis; remand to determine if an express oral agreement exists and, if not, to reweigh using Rooks/Davis factors (intended use, ability to procreate otherwise, original reasons, hardship, bad faith, etc.) |
| Effect of later Storage Agreement with Cryobank / mootness | Issue not moot; court must consider whether Storage Agreement supersedes IVF Contract and how it affects disposition | Storage Agreement replaces IVF Contract and contains its own disposition rules but does not resolve parties’ dispute absent decree | Court noted the Storage Agreement superseded IVF Contract; remanded to consider its effect along with any oral agreement and to apply balancing framework |
Key Cases Cited
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (established contractual‑first then balancing‑of‑interests framework; pre‑embryos occupy an interim category warranting special respect)
- In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018) (refined Davis factors; listed non‑exhaustive balancing factors and prohibited certain considerations)
- Szafranski v. Dunston, 34 N.E.3d 1132 (Ill. App. Ct. 2015) (upheld enforceable oral agreement regarding embryo use; explained limits of clinic forms)
- In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003) (adopted contemporaneous mutual‑consent approach; court declined to enforce prior disposition forms in divorce)
- A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000) (refused to enforce clinic consent as binding in divorce; emphasized right to change mind)
- Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012) (applied balancing test to award embryos where wife lacked other reasonable means of genetic parenthood)
- Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) (upheld written progenitor agreements regarding embryo disposition as presumptively valid)
- In re Marriage of Dahl and Angle, 194 P.3d 834 (Or. App. 2008) (gave effect to parties’ storage agreement and ordered destruction per contract)