146 Wash. 2d 514 | Wash. | 2002
Lead Opinion
— Petitioner Becky M. Litowitz seeks review of a decision of the Court of Appeals, Division Two, which affirmed an order of the Pierce County Superior Court in favor of Respondent David J. Litowitz in a dissolution
QUESTIONS PRESENTED
The questions presented in this case are: (1) whether the Court of Appeals was correct when it affirmed a Superior Court award of two cryopreserved preembryos to Respondent David J. Litowitz in a parenting plan in a dissolution action and (2) whether a motion by Respondent David J. Litowitz to submit additional evidence on review should be granted.
STATEMENT OF FACTS
On February 27, 1982 Petitioner Becky M. Litowitz and Respondent David J. Litowitz were married.
Petitioner and Respondent decided to have another child through in vitro fertilization.
Petitioner and Respondent entered into a contract in Beverly Hills, California with the egg donor. The contract
PARAGRAPH 13
All eggs produced by the Egg Donor pursuant to this Agreement shall be deemed the property of the Intended Parents and as such, the Intended Parents shall have the sole right to determine the disposition of said egg(s). In no event may the Intended Parents allow any other party the use of said eggs without express written permission of the Egg Donor.[18 ]
Respondent and Petitioner entered into two contracts with the Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California. One, a consent and authorization for preembryo eryopreservation (freezing) following in vitro fertilization, dated March 25, 1996, provided for freezing the preembryos.
The consent and authorization for preembryo eryopreservation contract stated in part:
We have been advised and understand that the legal status of the frozen pre-embryos has not been fully determined. In this regard, we acknowledge that we have been advised to seek independent legal counsel concerning our respective rights with regard to each pre-embryo placed in cryopreservation. We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our pre-embryos will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our pre-embryos, we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our pre-embryos.
We are aware that for a variety of reason [sic], (e.g. our choice, death of both of us, our achieving our desired family size) one or more pre-embryos may remain frozen and will not be wanted or needed by us. By this document, we wish to provide the Center with our mutual direction regarding disposition of our pre-embryos upon the occurrence of any one of the following four (4) events or dates:
A. The death of the surviving spouse or in the event of our simultaneous death.
B. In the event we mutually withdraw our consent for participation in the cryopreservation program.
C. Our pre-embryos have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agrees, at our request, to extend our participation for an additional period of time.
D. The Center ceases it’s [sic] in vitro fertilization and cryopreservation program.
At the earliest of the above-mentioned events or dates, we authorize and request that one of the following options be utilized for the disposition of our pre-embryos remaining in cryopreservation:
(1) That our pre-embryos be donated to another infertile couple (who shall remain unknown to all parties concerned), selected by the attending physician and/or the medical director of the Program, in which case we would relinquish any and all claims of maternal and/or paternal rights to the donated pre-embryos;
*520 (2) That our pre-embryos be donated for approved research and/or investigation;
(3) That our pre-embryos be thawed but not allowed to undergo further development;
(4) That our pre-embryos be disposed of in accordance with the best judgement [sic] of the professional staff of the Center.[21 ]
Petitioner and Respondent indicated their “desire for the ultimate disposition of [their] pre-embryos” by writing in longhand in the space provided on the contract “# 3—That our pre-embryos be thawed but not allowed to undergo further development.”
Petitioner and Respondent separated before their daughter, M., was born.
DISPOSITION OF PREEMBRYOS: This court makes the following decision awarding the preembryos to father in the best interest of the child. If this child is brought into the world*521 here in Tacoma or Federal Way, Washington the alternatives are not in the child’s best interest. In the first alternative the child would be a child of a single parent. That is not in the best interest of a child that could have an opportunity to be brought up by two parents. In the second alternative, the child may have a life of turmoil as the child of divorced parents. Also, both parties here are old enough to be the grandparents of any child, and that is not an ideal circumstance. The court awards the preembryos to Father with orders to use his best efforts for adoption to a two-parent, husband and wife, family outside the State of Washington, considering the egg donor in that, as Father is required.[28 ]
On December 11, 1998, Judge Stone also issued an order staying the order on preembryos and the restraining order on Petitioner.
On January 7, 1998 the court, under a stipulation, appointed Steve Downing to serve as guardian ad litem for the two preembryos.
In affirming the trial court, the Court of Appeals concluded the contracts signed by Petitioner and Respondent in California did not require Respondent to continue with their family plan to have another child and that Respondent’s right not to procreate compelled the court to award the preembryos to him.
On November 16, 2000 Petitioner Becky M. Litowitz sought review by this court
DISCUSSION
Contractual Issues
This is the first case in which this court has been asked to resolve a dispute over disposition of frozen preembryos in a dissolution action. There is limited case law in other jurisdictions involving disputes over disposition of frozen preembryos. We have identified cases addressing the issue from the highest courts of Tennessee, Massachusetts, New York and New Jersey.
In Davis v. Davis the Tennessee Supreme Court laid a framework for deciding disputes between divorcing couples over frozen preembryos.
disputes involving the disposition of preembryos produced by*523 in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed.[40 ]
In that case both parties were progenitors.
In Kass v. Kass the New York Court of Appeals concluded the parties’ agreement to donate preembryos to an in vitro fertilization program for research purposes would control.
*524 “ ‘In the event of divorce, we understand that legal ownership of any stored pre-zygotes[51 ] must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage. . . .
“ ‘The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes. . . .’ ”[52 ]
The couple indicated that, in the event they no longer wished to initiate a pregnancy or if they were unable to make a decision regarding disposition of their frozen prezygotes, the clinic could use the pre-zygotes for research and then dispose of them.
In A.Z. v. B.Z., the Massachusetts Supreme Court determined a consent agreement, providing that upon the donors’ separation the preembryos would be given to one of the donors for implantation, would not be enforced under the facts of the case.
Petitioner Becky M. Litowitz claims she has a contractual right to the cryopreserved preembryos in this case and that the Court of Appeals erred when it ignored her contractual
Respondent David J. Litowitz argues the egg donor contract does not provide for disposition of the preembryos to Petitioner.
The Court of Appeals concluded there was no express agreement to enforce because under the cryopreservation contract Petitioner and Respondent are required to petition the court for instructions only in the event they could not reach a mutual decision concerning disposition of the preembryos.
The Tennessee Supreme Court has wisely observed that disputes involving disposition of preembryos produced by in vitro fertilization should be resolved by looking to the preferences of the progenitors.
The Massachusetts Supreme Court offers commonsense advice that agreements regarding disposition of preembryos should be presumed valid and binding, and
In J.B. v. M.B. the New Jersey Supreme Court recently decided a case in which the woman, J.B., wished to discard remaining preembryos and the man, M.B., wished to implant them or donate them to infertile couples.
This case involves a dispute over frozen preembryos between Petitioner, who is not a progenitor, and Respondent, who is a progenitor. In the four cases cited from Tennessee, Massachusetts, New York and New Jersey, one party to each dispute contributed the egg and the other party contributed the sperm. They were all progenitors. In
The egg donor contract provides:
All eggs produced by the Egg Donor pursuant to this Agreement shall be deemed the property of the Intended Parents and as such, the Intended Parents shall have the sole right to determine the disposition of said egg(s). In no event may the Intended Parents allow any other party the use of said eggs without express written permission of the Egg Donor.172 1
(Emphasis added.)
Petitioner Becky M. Litowitz correctly asserts that the egg donor contract gives her and Respondent equal rights to the eggs even though she is not a progenitor. The contract defines Petitioner Litowitz as the “Intended Mother” and Respondent David J. Litowitz as the “Natural Father.”
It is not correct to conclude, as now asserted by Respondent, that there was no written agreement concerning intervention by the court. The cryopreservation contract provided “in the event [the Litowitzes] are unable to reach a mutual decision regarding the disposition of [their] pre-embryos, they must petition a court of competent juris
It is obvious that Petitioner and Respondent have not reached a mutual decision regarding disposition of the preembryos. Because they have not, it is appropriate for the courts to determine disposition of the preembryos under the cryopreservation contract.
“The touchstone of contract interpretation is the parties’ intent.”
The cryopreservation contract, signed March 25, 1996, provided for disposition of the Litowitzes’ two remaining preembryos. They unequivocally chose the option “[t]hat [their] pre-embryos be thawed but not allowed to undergo further development.”
Petitioner claims the decision of the Court of Appeals is internally inconsistent because it held that the contract did not control the dispute between the intended parents while it could be used to extinguish the rights of the egg donor.
Respondent asserts the Court of Appeals did not determine the rights of the egg donor.
The Court of Appeals correctly concluded the egg donor contract, at any rate, did not prevent Respondent from donating the preembryos to another couple.
Petitioner Becky M. Litowitz argues the term “child,” rather than “pre-embryo,” is the correct term and concept for the court’s consideration in this case.
It is at least possible that the two frozen preembryos have been destroyed under terms of the contract between Petitioner, Respondent and the Loma Linda Center for Fertility and In Vitro Fertilization dated March 25, 1996 and the specific direction of Petitioner and Respondent. However, no factual determination has been made concerning them. If the two preembryos still exist, they would be a proper subject for consideration by the court under the cryopreservation contract. If they have been destroyed, the issue in this case would be moot.
Additional Evidence on Review
In his motion to allow additional evidence on review, Respondent David J. Litowitz asked this court to allow additional evidence to be taken in the trial court relating to Petitioner Becky M. Litowitz’ drug use discovered after the final decree of dissolution which resulted in a temporary order granting Respondent primary custody of their child, M., and evidence regarding a report that Petitioner Litowitz paid a third party to have Respondent killed.
(a) Remedy Limited. The appellate court may direct that additional evidence on the merits of the case be taken before the decision of a case on review if: (1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party’s failure to present the evidence to the trial court, (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.
Respondent presented no sufficient grounds for this court to consider his request for additional evidence on review. We deny his request.
SUMMARY AND CONCLUSIONS
This case is limited to a determination, in a parenting plan incident to a dissolution action, of the contractual rights of a married couple to two cryopreserved (frozen) preembryos remaining after successful implantation of three preembryos in a surrogate mother which resulted in the birth of a child.
Petitioner Becky M. Litowitz and her then husband, Respondent David J. Litowitz, in Beverly Hills, California on March 20, 21, and April 1, 1996 contracted with J.Y. for donation of eggs from J.Y. by transvaginal aspiration so the eggs “shall be removed from [J.Y.’s] body, fertilized with the semen of the Natural Father [Respondent David J. Litowitz]” by which the “fertilized egg(s)/ovum/zygote shall be implanted into the body of... a Surrogate Mother for the purpose of carrying the pregnancy to term.” This process produced five eggs which were fertilized under terms of the contract.
Petitioner and Respondent on March 25, 1996 entered into two contracts with the Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California, the
Three of the five fertilized eggs, then called preembryos, were implanted in a surrogate mother, producing a child who was born January 25, 1997. The two remaining preembryos were cryopreserved (frozen) and stored in the clinic in Loma Linda, California. It is these two preembryos which are the sole subject of the litigation before the court in this case.
The egg donor contract is not at issue in this case. This court is concerned only with the preembryo cryopreservation contract. Under that contract Petitioner and Respondent agreed to submit to the court the question of disposition of remaining preembryos in the event they could not reach mutual agreement. They could not reach agreement. The matter has thus been presented to the Pierce County Superior Court, the Court of Appeals and now to this court for appropriate instructions.
It is not necessary for this court to engage in a legal, medical or philosophical discussion whether the preembryos in this case are “children,” nor whether Petitioner (who was not a biological participant) is a progenitor as is Respondent (who was a biological participant).
We base our decision in this case solely upon the contractual rights of the parties under the preembryo cryopreservation contract with the Loma Linda Center for Fertility and In Vitro Fertilization dated March 25,1996. Under that contract Petitioner and Respondent gave direction to the Loma Linda Center for disposition of the remaining preembryos resulting from fertilization of five eggs they acquired under the egg donor contract. They directed that the remaining preembryos be “thawed out but not allowed to undergo further development” and disposed of when the preembryos “have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agree [d], at [the Litowitzes’] request, to
The first three preembryos were implanted in a surrogate mother, most probably about April 20, 1996 and certainly not before March 25, 1996, with the resultant birth of a child, M., on January 25,1997. The date of April 20, 1996 is determined by calculating a 280-day gestation period for the child. Custody of the remaining two preembryos was taken by the Loma Linda Center under the cryopreservation contract on the date the other three were implanted in the surrogate mother.
Petitioner David J. Litowitz filed a motion to allow additional evidence on review. He presented no sufficient grounds under the applicable RAP 9.11 for this court to consider his request for additional evidence. We deny his motion.
We reverse the decision of the Court of Appeals, Division Two.
Alexander, C.J., and Johnson, Ireland, Bridge, and Owens, JJ., concur.
Madsen concurs in the result.
Stedman’s Medical Dictionary 416 (26th ed. 1995) (“cryopreservation” is defined as the “Maintenance of the viability of excised tissues or organs at extremely low temperatures.”).
See Lee Kuo, Note, Lessons Learned from Great Britain’s Human Fertilization and Embryology Act: Should the United States Regulate the Fate of Unused Frozen Embryos?, 19 Loy. L.A. Int’l & Com. L.J. 1027,1030-31 (1997) (“Cryopreservation is achieved by freezing the embryos in liquid nitrogen at negative 195 degrees centigrade. After freezing, the embryos are carefully stored and may later be thawed for implantation in a recipient’s uterus.”(footnote omitted)).
Clerk’s Papers at 177-78. “The term ‘preembryo’ denotes that stage in human development immediately after fertilization occurs. The preembryo ‘comes into existence with the first cell division and lasts until the appearance of a single primitive streak, which is the first sign of organ differentiation. This [primitive streak] occurs at about fourteen days of development.’ ” Donna A. Katz, Note, My Egg, Your Sperm, Whose Preembryo? A Proposal for Deciding Which Party Receives Custody of Frozen Preembryos, 5 Va. J. Soc. Pol’y & L. 623, 628 n.42 (1998) (alteration in original) (quoting Clifford Grobstein, Human Development from Fertilization to Birth, in Encyclopedia of Bioethics 847 (Warren Thomas Reich ed., 1995)).
Litowitz v. Litowitz, 102 Wn. App. 934, 10 P. 3d 1086 (2000).
Clerk’s Papers at 2.
Id.
Id. at 4.
Id.
Stedman’s Medical Dictionary 637 (26th ed. 1995) (“In vitro fertilization (IVF)” is “a process whereby (usually multiple) ova are placed in a medium to which sperm are added for fertilization, the zygote thus produced then being introduced into the uterus and allowed to develop to term.”).
In vitro fertilization “involves hormonal stimulation of the woman’s ovaries, resulting in the ovulation of multiple eggs (frequently ten or more). The eggs are then removed via laparoscopy, a surgical procedure, or needle aspiration guided by ultrasound and are combined in a petri dish with either fresh or thawed sperm. The resulting ‘preembryos’ are allowed to divide until they reach the two- to eight-cell stage. Between one and six preembryos are inserted via catheter into the uterus, where it is hoped at least one will implant in the uterine wall and grow to full term.” Katz, supra at 628-29 (footnotes omitted).
13 Report of Proceedings (Oct. 26, 1998) at 6.
11 Report of Proceedings (Oct. 21, 1998) at 51.
Id.
11 Report of Proceedings (Oct. 21, 1998) at 51; 9 Report of Proceedings (Oct. 26, 1998); 13 Report of Proceedings (Oct. 26, 1998) at 13. The egg donor was not the surrogate mother.
11 Report of Proceedings (Oct. 21, 1998) at 54.
Clerk’s Papers at 159.
Identity protection for the donor is required under the contract.
Id.
Id.
Id. at 5.
Answer to Pet. for Review, App. at 12-18. On one line Petitioner Becky M. Litowitz indicated next to her signature the date “3-26-95,” although the date indicated by her and all other signators on the other lines was the year “96.”
Answer to Pet. for Review, App. at 17-18. The agreement was titled, “Agreement and Consent for Cryogenic Preservation (Short Term)”. That contract is not relevant to the issues before the court in this case.
Answer to Pet. for Review, App. at 14-16 (emphasis added).
Id.
Id.
11 Report of Proceedings (Oct. 21, 1998) at 60.
11 Report of Proceedings (Oct. 21, 1998) at 55.
13 Report of Proceedings (Oct. 26, 1998) at 15, 20.
Clerk’s Papers at 143.
Id. at 143. The characterization of frozen preembryos as “children” is of dubious legal or scientific correctness. However, it is of no consequence to our determination in this case.
Id. at 197.
Id.
Id. at 148.
Litowitz, 102 Wn. App. at 946.
Pet. for Review, Wash. Supreme Ct. (Nov. 16, 2001).
Order, Wash. Supreme Ct. (Apr. 12, 2001).
Mot. to Allow Additional Evidence on Review, Wash.. Supreme Ct. (May 8, 2001).
Id. at 1-2.
Id.
Id. at 2.
Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).
Id. at 604.
Stedman’s Medical Dictionary 1434 (26th ed. 1995) (A “progenitor” is “[a] precursor, ancestor; one who begets.”).
Davis, 842 S.W.2d at 591-92.
Id. at 590.
Id. at 603-05.
Kass v. Kass, 91 N.Y.2d 554, 562, 569, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998).
Kass, 91 N.Y.2d at 560.
The terms “preembryo” and “pre-zygotes,” while technically not the same, are used interchangeably in the cases.
Id. at 560.
Id.
Id. at 558.
The court defined “pre-zygote” as “ ‘eggs which have been penetrated by sperm but have not yet joined genetic material.’ ” Kass, 91 N.Y.2d at 557 n.1.
Id. at 559.
Id. at 559-60.
Id. at 569.
A.Z. v. B.Z., 431 Mass. 150, 158, 725 N.E.2d 1051 (2000).
A.Z., 431 Mass. at 157-62.
Pet. for Review at 4.
Id.
Id. at 5.
Answer to Pet. for Review at 9.
Id. at 6-7.
Litowitz, 102 Wn. App. at 941.
Davis, 842 S.W.2d at 604.
Id.
See Kass, 91 N.Y.2d at 565; see Davis, 842 S.W.2d at 597.
Id.
Id.
J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001).
Id. at 14.
Id. at 30.
Id.
Clerk’s Papers at 163.
Id.
Id.
Answer to Pet. for Review, App. at 14-16.
Tanner Elec. Coop. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996). See Scott Galvanizing, Inc, v. N.W. EnviroServices, Inc., 120 Wn.2d 573, 580, 844 P.2d 428 (1993).
Byrne v. Ackerlund, 108 Wn.2d 445, 455, 739 P.2d 1138 (1987).
Scott Galvanizing, 120 Wn.2d at 580-81 (quoting Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990) (quoting Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973))).
Answer to Pet. for Review, App. at 14-16.
The court can take judicial notice that cryopreservation occurred on the date the other three preembryos were implanted which resulted in the birth of M. on January 25, 1997. Under a normal gestation period of 280 days, the date of implantation was most probably April 20, 1996.
See Sidney B. Schatkin, Disputed Paternity Proceedings 519-20 (Matthew Bender & Co., Inc. 1953) (1944) (“The duration of pregnancy, or period of gestation, is the interval in days between the time of impregnation and the beginning of labor. The normal period of gestation, according to the consensus of medical testimony, is approximately 9 calendar months—10 lunar months—or 280 days, calculated from cessation of the last menstruation. In the United States, the courts will judicially notice that a period of 9 calendar months is the usual period of gestation.” (footnote omitted)).
Pet. for Review at 8.
Id. at 8-13.
Answer to Pet. for Review at 9.
Id. at 10.
Id. at 12.
Litowitz, 102 Wn. App. at 945.
Id.
Pet. for Review at 7.
Id. at 13-16.
See Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 350, 932 P.2d 158 (1997); In re Det. of Swanson, 115 Wn.2d. 21, 24, 793 P.2d 962 (1990).
Mot. to Allow Additional Evidence on Review at 1-2.
Id.
Id. at 2, 11.
Concurrence in Part
(concurring in part and dissenting in part). I largely concur with the reasoning of the majority. However, I would remand for farther proceedings based on contract principles, equity, and public policy.
The majority grounds its result upon a contract between the parties and Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California. The majority fails, in my view, to emphasize that this contract must be considered in the context of a dissolution action. In a dissolution, principles of equity and public policy must be
I conclude that the intent of the parties, as evidenced by the written contract, is consistent with equity and public policy as expressed by the Legislature and this Court and should be enforced. However, given that the trial court applied a different standard, remand is the appropriate remedy.
Dissenting Opinion
(dissenting) — The majority contends the cryopreservation contract controls the disposition of the preembryos. Majority at 527. But even if so, I posit that the contractual text does not support the majority’s disposition, but rather the trial court’s.
The contract states in pertinent part:
We agree that because both the husband and wife are participants in the cryopreservation program, that any decision regarding the disposition of our pre-embryos will be made by mutual consent. In the event we are unable to reach a mutual decision regarding the disposition of our pre-embryos, we must petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of our pre-embryos.
Pet’r’s Ex. 410, at 3 (Cryopreservation Contract) (emphasis added). The contractual provision vested the trial court with exclusive discretion to determine an appropriate disposition of the preembryos upon request but absent the agreement of the parties.
I however posit this provision of the contract is applicable because the parties were unable to come to a mutual decision, and did petition a court for an appropriate disposition of their preembryos, strictly in accordance with this clause of the contract. In the reasonable exercise of its contractually vested discretion—and the majority does not claim that discretion was abused—the trial court adopted
We are aware that for a variety of reasons, (e.g. our choice, death of both of us, our achieving our desired family size), one or more pre-embryos may remain frozen and will not be wanted or needed by us. By this document, we wish to provide the Center with our mutual direction regarding disposition of our pre-embryos upon the occurrence of any one of the following four (4) events or dates:
A. The death of the surviving spouse or in the event of our simultaneous death.
B. In the event we mutually withdraw our consent for participation in the cryopreservation program.
C. Our pre-embryos have been maintained in cryopreservation for five (5) years after the initial date of cryopreservation unless the Center agrees, at our request, to extend our participation for an additional period of time.
D. The Center ceases it’s [sic] in vitro fertilization and cryopreservation program.
At the earliest of the above-mentioned events or dates, we authorize and request that one of the following options be utilized for the disposition of our pre-embryos remaining in cryopreservation:
(3) That our pre-embryos be thawed but not allowed to undergo further development [selected option].
Id. (emphasis added); majority at 519-20.
This provision is facially inapplicable because its stated contingencies concern either a mutual decision not to produce a child (B, C), the death of both parties (A), or impossibility (D), none of which is present here. Nevertheless, with the unerring precision of a moth to the flame, the majority seizes upon the third contingency, ignoring the mutuality of decision implicit in the phrase “at our request.” Id. (emphasis added).
Even if one were to apply the second paragraph, carelessly setting aside the former operative provision and ignoring the mutual consent implicit in the third contingency, the contract still would not support the majority’s outcome because the contractual time period was tolled by the timely commencement of this litigation as a matter of law. See Wothers v. Farmers Ins. Co. of Wash., 101 Wn. App. 75, 79, 5 P.3d 719 (2000). Cf. Lane v. Wahl, 101 Wn. App. 878, 6 P.3d 621 (2000) (considering the validity of a 10-year lease even though the record did not indicate whether the lease had been renewed); CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996) (considering propriety of mandating the Secretary of State to process referendum petition long after 90-day time limit of Const, art. II, § 1(d) to gather signatures had expired).
This contract was signed and the cryopreservation began in the spring of 1996. The dissolution proceeding commenced only two years later and included a timely request that the court provide a timely disposition of the preembryos. The proceeding culminated in a dissolution order dated December 11, 1998. That by today more than five years has passed since the cryopreservation commenced is irrelevant because the judicial action which provided for the disposition of the preembryos was commenced well within the five-year window thereby tolling the contracted period of limitations.
Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998) is illustrative. The dispute there was
But the Kass court wisely did not speciously entertain that scenario, as it was apparently the assumption of all there concerned that, as here, the timely commencement of litigation rendered the five-year termination provision inapplicable. Instead, the court focused on the agreement, evidencing the parties’ intent to donate their prezygotes to the clinic for research if they could not agree on another disposition. Id. at 176-77, 178.
Here, however, David and Becky Litowif z contracted that if they could not reach an agreement on the disposition of their remaining preembryos they were contractually bound to “petition to a Court of competent jurisdiction for instructions concerning the appropriate disposition of” their preembryos. Pet’r’s Ex. 410, at 3. That is exactly what they did, and well within the five-year time frame. Now it is our duty to either enforce the agreement as any other contract or set it aside for some recognized legal reason. See Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 340, 738 P.2d 251 (1987).
To properly enforce this agreement we must ultimately determine the parties’ intent at the time they signed the consent and authorization form. Parties’ contractual intent is determined objectively by looking to various factors, including (1) the language of the agreement; (2) the agreement as a whole; (3) the context in which the agreement
This agreement stated exactly what the parties intended in the event they could not agree on the disposition of their preembryos: let the court decide. Provisions whereby parties agree to resort to resolution by courts or arbitrators in the event of disagreement are routinely enforced. Cf., e.g., Sullivan v. Great Am. Ins. Co., 23 Wn. App. 242, 246, 594 P.2d 454 (1979); Barnett v. Hicks, 119 Wn.2d 151, 154, 829 P.2d 1087 (1992); Wagner v. Peshastin Lumber Co., 149 Wash. 328, 336, 270 P. 1032 (1928); State v. Everett, 144 Wash. 592, 597, 258 P. 486 (1927).
One thing the parties obviously did not intend was to destroy the whole object of the contract, the preembryos, simply because this litigation was prolonged beyond five years after the initial date of cryopreservation while the parties were patiently waiting for appropriate court “instructions concerning the appropriate disposition of [their] pre-embryos,” nor has either party even argued for that unimagined result. But the majority’s disposition apparently calls for the destruction of unborn human life even when, or if, both contracting parties agreed the preembryos should be brought to fruition as a living child reserving their disagreement over custody for judicial determination. Thus the majority denies these parties that option left by Solomon in lieu of chopping the baby in half. The wisdom of Solomon is nowhere to be found here.
The trial court’s decision to strive for a result in the best interest of the potential child was certainly at least one reasonable way to effectuate the intent of the parties. There may have been others, but I cannot fault a trial court that recognized the fundamental purpose and objective of the contract and dealt with the prospect a child would be born, the future of which was of paramount concern and profound
I would therefore affirm the trial court’s resolution by ordering David Litowitz to donate the preembryos to a couple suitable to raise the child.
Reconsideration denied September 12, 2002.
