California Trial Court Upholds Couple's Agreement with UCSF and Orders Pre-embryos Discarded

December 16 , 2015
by: Susan L. Crockin, J.D.
Orginally published in ASRM News December 2015

A long-awaited trial court decision over a frozen embryo dispute has come down squarely on the side of the ex-husband and the medical program whose documents the former couple signed before undergoing IVF.  (Findley v. Lee, 11/18/15). The case involved a divorcing couple and their differing views on disposition of their cryopreserved embryos, created after the woman’s diagnosis of breast cancer early into their three-year marriage. There was no dispute that the former couple signed documentation with their IVF program in which they chose that in the event of death, the survivor would get the embryos but in the event of divorce they would be destroyed. In an 83 page opinion, the trial court provided a careful analysis of the issues, California statutory and case law, cases from “sister states”, as well as its view of the unique nature of IVF “pre-embryos” (which it defined in accordance with the 2007 American Heritage Medical Dictionary, as a “fertilized ovum up to 14 days old, before uterine implantation”)  and the public policy issues surrounding what it claimed are more than four million currently cryopreserved pre-embryos. The court ruled that the document in question was a legal agreement that evidenced and reflected the parties’ intentions at the time they underwent IVF, and as such “controls.” The court’s decision is deemed a “Tentative Decision and Proposed Statement of Decision,” until, under California court procedures, the court has considered any party’s “objections” asking the court to consider revising parts of its opinion. After a set time and any revisions the court may but need not make, the decision becomes final and thus appealable.  A link to the full copy of the opinion can be found at the end of this column.

The legal issues raised by the case were whether or not the IVF program’s standard embryo disposition form was enforceable under California law, appropriately executed, and intended to address the respective rights of the two patients, and not just akin to an advance directive that addressed only the couple’s intentions in connection with the clinic or otherwise subject to either’s change of mind.  The couple signed two separate forms their clinic, UCSF, provided to them: 1) an “Informed Consent for IVF” as to the procedure itself; and 2) a “Consent & Agreement for Cryopreservation Disposition of Frozen Embryos.” The dispute centered on the latter document, which the court called “a very different document” from the informed consent. When the ex-wife sued her ex-husband for the embryos, his attorneys moved to “join” UCSF as a necessary or "indispensable” party since it was their agreement that was in dispute.  UCSF took the position that its “Consent & Agreement” was a valid and enforceable agreement consistent with California’s Health and Safety Code which requires a written directive and choices made by IVF patients, as well as an informed consent, and was necessary for predictability in running IVF programs. While the court ultimately agreed with the program’s position on almost all issues, it declined to rule the embryos were “property” as the program sought, a significant finding but one that did not impact the outcome as discussed below.

The couple had known one another for many years, but only married around the time of the wife’s diagnosis, when she was 41.  The court took note that the ex-wife, Dr. Lee, an anesthesiologist, had worked at a fertility clinic for three years, and was aware of and had considered egg freezing (and was briefly advised of it by UCSF) but had not pursued it before or after her marriage, although her cancer diagnosis and treatment (Tamoxafin) did not preclude IVF and harvesting eggs. Moreover, it found she had not proven that she is now infertile. On many factual issues, the court found her testimony was not credible, a factor that likely did not help her case. The court also recounted testimony about discussions between the two former spouses over the embryos. It noted that the ex-wife’s offer to relieve the ex-husband of child support obligations for any child would be against public policy and unenforceable since support is a child’s right, and not waiveable by his or her parent.  Moreover, Findley testified he would want to be involved in any child’s life, although he adamantly did not want to parent with Lee.

The wife’s attorneys argued, among other things, that the “Consent & Agreement” was only a contract between the couple as an entity on the one hand, and UCSF on the other, and not an agreement between themselves. Instead they characterized it as being in the nature of an advance medical directive, which either spouse could unilaterally change. If it was deemed a contract, they argued it was invalid as a “contract of adhesion” (meaning a contract that is unenforceable because of such a clear imbalance of power that the weaker party essentially has no bargaining power); that her informed consent was not properly obtained; and that a balancing test should be applied in which her constitutional right to procreate should trump.

In contrast, the husband’s attorneys argued the forms constituted a valid legal agreement that was enforceable under California law, and in which the couple clearly directed the discarding of the embryos upon divorce. Unlike his ex-wife, Mr. Findley testified that he read the documents carefully, that they had made deliberate and distinct choices about using the embryos upon death or divorce, that they had earlier discussed only wanting to have children during their marriage, and that had his wife made any other choice besides discard he would have both been surprised and would not have signed the agreement.  The court injected into its opinion that Dr. Lee had four abortions as evidence supporting the contention the parties only wanted to use their IVF embryos to jointly parent. The evidence of when the two documents were given to the couple was also somewhat disputed. The program’s records suggested they were given a week before signing, during a one hour meeting with their doctor, while the wife testified to the effect that they were given to her on the day of signing, and that she only had the documents for 10 minutes before signing them. Her ex-husband testified they had the documents that day for 10-20 minutes. The court found it was “more likely than not” that the couple were given the documents a week earlier, but also concluded this was immaterial as neither patient asked for more time or for an attorney’s assistance.

The court reviewed both the forms and the process by which they were executed in detail.  It pointed out that the word “Agreement” appeared prominently in the title of the cryopreservation document and that the words “agreement”, “agreed” or “agree” appeared more than 27 times, including three to four times in the last paragraph alone; that that the couple had initialed the document in at least 15 places, including next to the dispositional choice to discard that was at issue.  In rejecting the ex-wife’s argument that the document was an unenforceable “contract of adhesion,” the court found the bargaining power was not particularly skewed, noting there were other local IVF programs the couple could have used--and that the ex-wife had initially consulted another program, that UCSF allowed the couple to provide an alternate disposition to those it offered (subject to it accepting them), and that the husband did not raise any such concerns.

As to the law on IVF embryo dispositions, the court ruled California had passed a statute that mandated the very form and choices that UCSF had prepared and offered. It also ruled that California courts resolving similar disputes (citing Calvert v. Johnson and In Re Buzzanca, two seminal surrogacy disputes from that state) looked generally to the intent of the parties at the time of the procedure to resolve later-arising disputes.  It categorized embryo dispute decisions around the country into three general categories, contract—which it favored, mutual contemporaneous consent, and a balancing of interests. The court somewhat eloquently wrote about the benefits of binding agreements: “Decisions about family and children are often difficult, and can become wrenching when they become disputes. The policy best suited to ensuring that these disputes are resolved in a clear-eyed manner--- unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court---is to give effect to the intentions of the parties at the time of the decision at issue.”

 It rejected the ex-wife’s arguments that the language in the Consent & Agreement to the effect that the IVF program could refuse to execute the stated choice pending a court order in the event of a dispute (similar language appears in many clinic forms) meant that courts could or should substitute their judgments for the parties.  Instead, it noted that language was  “merely a waiver of liability intended to insulate the program should it defer to a court order. Under any other interpretation, the court noted the agreement would have no meaning since it could be changed, either unilaterally or by a court substituting its judgment for the considered choice the couple earlier decided upon. The court also quoted many provisions in the UCSF document that required the couple’s “joint” change of mind for any future changes.  Although it ruled the Consent & Agreement did not need to arise to the level of a contract, in this case it found it indeed did meet those elements.

The trial court also rejected Lee’s attempt to rely on a recent California court decision involving movie star Jason Patric’s successful paternity claim after giving his sperm to an ex-girlfriend. The court distinguished that informed consent on the basis that it did not contain any understanding as to Patric’s legal status regarding parentage.  

The court’s detailed analysis (as well as counting the number of times specific legally significant terms were used) illustrates the pivotal weight given to the language choices in the program’s documentation.

The court also rejected the argument that either party’s Constitutional right to procreate or not to procreate was implicated. First, it ruled that Lee’s right to procreate was not denied, only her right to procreate with Findley and using the embryos they had created. Secondly, it ruled that both former spouses had waived their rights by entering into the contract and making their elections in the event of divorce or death.

Finally, the court took up the issue of whether an IVF pre-embryo is  “property” as the program argued, and declined to do so. It distinguished eggs and sperm—which it recognized courts have deemed property, from embryos.  It recognized it had jurisdiction over the embryos because the couple could lawfully exercise rights over them. The court did not suggest IVF pre-embryos are human life itself, as clearly evidenced by its ruling to discard them, but refused to equate them with eggs, sperm or property in general. In its words: “To suggest that this Court should find that these five 'viable' embryos are simply property undermines not only the express language in the Consent & Agreement, but it ignores the very reason couples undergo the emotionally and financially draining process of IVF: To have a child. It simply is not necessary in this case to categorize the embryos as 'life' or 'property.'” The reality is that the embryos and their creators, Lee and Findley, deserve something more nuanced… the embryos in this case represent the nascent stage of five human lives. They are not property, nor are they fully formed human beings. They are, in the construct of the law, sui generis [in a class of its own] and will be deemed as such in this statement of decision.”

While the court’s words could potentially be distorted to try to personify embryos for political purposes, it is clear that this was not the court’s meaning. Moreover, its 
characterization is consistent with many of the court decisions around the country, as well as with ASRM’s long-standing Ethics Committee statement.

The case is significant on many levels. It reinforces the impactful legal distinction between informed consents and agreements regarding disposition of IVF embryos, illustrates the value in having both, and gives detailed guidance on what elements and language within a well-crafted document will evidence intent and agreement by patients.  It is worth noting, however, that the court was not faced with the more difficult fact pattern of a couple who had agreed one could use the embryos in the event of a divorce, but the ex-spouse later changed his or her mind.  While the court’s opinion would seem to support the couple’s original decision, that scenario would present the more difficult possibility of ordering unwanted parenthood as opposed to unwanted discard. Even without a statute that requires dispositional choices be clearly offered and selected, the opinion illustrates how and why doing so can help avoid later disputes and uncertainty.  It also recognizes the value for IVF programs to have and be able to rely on such documentation and direction in their practices. Even with the possibility of an appeal, the decision provides an enlightened analysis, and helpful judicial guidance, for programs and their documentation.

Findley v. Lee

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.  

“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART.  --Susan Crockin, JD

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