In re Marriage of Witten

Supreme Court of Iowa · Family Law

Family Lawfrozen embryosdissolution of marriageproperty divisionattorney feesembryosIVFmutual consent

Facts

During the marriage, Tamera and Trip underwent in vitro fertilization using Tamera's eggs and Trip's sperm, and seventeen fertilized eggs remained in storage at the University of Nebraska Medical Center at the time of trial. Before treatment, the parties signed an embryo storage agreement stating that stored embryos would be used for transfer, release, or disposition only with the signed approval of both client depositors. After Trip sought dissolution, Tamera asked for control of the embryos so she could attempt pregnancy through implantation in herself or a surrogate, while Trip opposed her use of the embryos and requested that neither party be allowed to use or dispose of them without the other's consent. The district court enforced the agreement and entered an injunction requiring mutual written consent for any transfer, release, use, or disposition.

Issue

In a dissolution action, may one former spouse use frozen embryos over the other former spouse's objection, and are prior embryo disposition agreements enforceable between the donors after one party changes his or her mind? A related issue was whether frozen embryos should be treated as children under Iowa's custody statute and governed by a best-interests analysis.

Rule

Frozen embryos are not governed by Iowa Code section 598.41's child-custody best-interests framework. Agreements made when IVF begins are binding and enforceable, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored embryo, and any change of intention must be communicated in writing to all parties. If the donors then cannot agree, no transfer, release, use, or disposition may occur without the contemporaneous mutual consent of both donors, and the status quo is maintained; the party or parties opposing destruction should bear storage costs.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After divorcing in Des Moines, Lena Ortiz asks the family court to award her "custody" of six frozen embryos she created with her former spouse, Caleb Morse, during IVF. Lena argues the court should decide the issue under the state's child-custody statute because she can provide the embryos with the best future home.

How should the court rule under the governing doctrine?

Explanation. The majority rejected use of a dissolution child-custody best-interests analysis for frozen embryos. The dispute is not about maximizing contact between parents and an existing child, but about who has decision-making authority over whether the parties will become parents at all. Thus, the custody statute does not govern.