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Reproductive Freedom

When Couple Is Divorcing, What Should Happen to Their Fertilized Pre-Embryos?


From Jocelyn P. v. Joshua P., decided yesterday by the Maryland Appellate Court (nonprecedential opinion by Judge Andrea Leahy, joined by Justices Christopher Kehoe & Terrence Zic):

"Promises are the uniquely human way of ordering the future, making it predictable and reliable to the extent that is humanly possible." -Hannah Arendt ….

The parties, Jocelyn P. … and Joshua P. …, resorted to the IVF process during the course of their marriage after they attempted, unsuccessfully, to conceive a child by natural means. The couple managed to produce three viable pre-embryos for uterine implantation after Jocelyn gave up her job and endured years of emotional and physical pain and suffering. The implantation of the first pre-embryo resulted in a miscarriage, while implantation of the second happily culminated in the birth of the parties' first child, F.P. Unfortunately, after F.P.'s birth, Jocelyn and Joshua's relationship deteriorated and the parties ultimately sought dissolution of the marriage. After agreeing to settlement terms on all other matters, the fate of the parties' third pre-embryo—which Jocelyn desires to use for implantation and Joshua desires to destroy—remained in dispute.

[The trial court] took … testimony and entered a memorandum opinion and order (1) finding that the parties' oral agreement only contemplated disposition of the pre-embryos during their marriage, and (2) awarding the pre-embryo to Joshua after balancing the parties' interests….

We hold that the trial court erred in finding that the parties' prior oral agreement did not control the disposition of the parties' remaining pre-embryo. While Jocelyn and Joshua certainly contemplated using all of the pre-embryos within the confines of an intact marriage, Jocelyn has consistently testified that they both agreed to give each pre-embryo an opportunity to be born "no matter what." Joshua—who testified after Jocelyn—did not testify to having placed any limitations or conditions on that unequivocal mandate and acknowledged that they had "agree[d] to give all the embryos a chance at life." In reliance on that agreement, and as consideration thereunder, Jocelyn:

  • Underwent a surgical procedure to remove eggs from her uterus;
  • As a result of the hormone injections required to prepare for that procedure, suffered, among other things, thinning hair and significant weight gain;
  • Experienced the trauma of a miscarriage during the parties' first attempt to bear a child; and
  • Attended "hundreds" of medical appointments and shifted to part-time work to accommodate that grueling schedule.

The circuit court, in reaching its decision, relied entirely on Joshua's testimony that the parties did not specifically discuss giving the embryos a chance at life outside their marriage. The court's holding, therefore, added a qualifier to the parties' clear oral agreement—i.e., to give each pre-embryo a chance at life, no matter what, except in the event of divorce—to which Jocelyn and Joshua never actually agreed. We cannot, under an objective theory of contract interpretation, accede to the court's revision of the parties' oral agreement….

Accordingly, we hold that the trial court erred in finding that the parties' prior oral agreement to give each pre-embryo a chance at life "no matter what" did not control the disposition of Jocelyn and Joshua's remaining pre-embryo. In the future, to avoid these disputes, we would encourage couples—no matter how hopeful they are as to the future success of their marriage—to "think through [all] possible contingencies and carefully specify their wishes in writing." …

We recognize that, because we now reverse the judgment of the circuit court and instruct that the parties' pre-embryo should be awarded to Jocelyn for purposes of achieving pregnancy, the parties' rights and obligations respective to a potential future child shift to the forefront. Because the circuit court determined that the parties' pre-embryo should be awarded to Joshua for purposes of destruction, it did not have an opportunity to define the parties' rights and obligations to a possible child. Although Jocelyn testified in the first evidentiary hearing that she could "absolutely" be financially responsible for any child and that she wouldn't "have any issues supporting [her]self[,]" the record is not fully developed as to whether the parties had any particular agreement regarding Joshua's potential role and obligations in the event of a successful birth.

While the parties may agree, as Jocelyn has suggested, to forego any child support and that no other obligations would be imposed on Joshua, any such agreement is not binding on the court precisely because "child support decisions always are within the sound discretion of the circuit court, regardless of any agreement between the child's parents." To permit otherwise would "elevate[ ] the parties' contractual expectations over the best interests of the children and impermissibly allow[ ] the parties 'to agree to preclude a child's right to support by the other parent, or the right to have that support modified in appropriate circumstances.'" A remand for further proceedings to address this issue is appropriate.

For guidance on remand, we note that as a practical matter, Joshua's rights and obligations with respect to any potential second child also hinge on whether he would be considered the child's legal parent. Under Maryland law, the paternity of a child may be determined either "by a statutory action in a paternity proceeding under the Family Law Article or in an equitable action under the Estates & Trusts Article." Because, as far as we can tell from the record, a final divorce decree has not been entered in this case, we leave it to the court's discretion to conduct further proceedings under the appropriate framework either before the entry of a final divorce decree or, after the entry of such an order, under the court's continuing jurisdiction to address issues of child support and custody.

As a general matter, "when paternity is in question for a child born during a marriage, the Estates and Trusts Article applies 'because it presents the more satisfactory and less traumatic means of establishing paternity.'" Importantly—due to operation of the presumption of legal parentage set forth in Maryland Code (1974, 2019 Rep. Vol.), Estates & Trusts Article ("ET"), section 1-206—in a proceeding under the Estates & Trusts Article, "the presumption of legal parentage [for children born during a marriage] established under ET § 1-206 may only be rebutted after a showing that proceedings to disestablish parentage are in the best interests of the child."

In contrast, "the Paternity Act, codified at Maryland Code (1984, 2012 Repl. Vol.), Family Law Article §§ 5–1001 et seq., is aimed at addressing putative fathers in regard to children born outside of marriage." Perhaps to avoid deciding questions of paternity that may be mooted, the Paternity Act establishes that—although a "paternity proceeding under this subtitle may be begun during pregnancy"—a trial on the merits "may not be held until after the birth of the child who is the subject of the proceeding." …

Accordingly, utilizing our authority under Maryland Rule 8-604(e), we shall remand to the circuit court with instructions to: (1) enter an order awarding the parties' remaining pre-embryo to Jocelyn and (2) schedule a supplemental review hearing, whether before or after entry of a final divorce decree, to determine the parties' rights and obligations to any potential second child.

{We observe that some of our sister states have adopted a version of Section 706 of the Uniform Parentage Act (UPA), which provides that, "[i]f a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child." As noted by a recent article, several of our sister states have adopted the UPA approach providing that a child born from a pregnancy commenced through IVF after divorce is not the child of the non-consenting former spouse unless that individual agrees to further involvement. By providing the non-consenting former spouse the option to retain a parental role, this approach reduces the impingement on that individual's constitutional right to not procreate, at least in the sense of imposing unwanted legal (rather than genetic) parenthood.}