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From Jocelyn P. v. Joshua P., decided yesterday by the Maryland Appellate Court (nonprecedential opinion by Judge Andrea Leahy, joined by Justices Christopher Kehoe & Terrence Zic):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

Comments

[not guilty]

It is noteworthy that the appellate court made its determination relying solely upon contract law.

Will the blastocystophiles now kvetch that the court did not conduct a best interest of the "child" analysis? And what about the dictum at footnote 8 that "any order forcing a woman to implant a pre-embryo in her body against her will would be unenforceable as against public policy for many reasons"?

[Sam Bankman-Fried]

I knit sweaters for frozen embryos…they are so cold. 🙁

[ReaderY]

Not quite. It decided what to do with the unimplanted embryo strictly on contract law. But it explained that once the child is born, what to do with it will be decided based on best-interest-of-the-child law. The practical effect is that while promises about the disposition of the embryo get honored regardless of what the trial court thinks, promises made about the child’s future, such as the wife’s promise not to seek child support, will become void and unenforceable the minute the child is born if the court determines them to be contrary to the child’s best interest.

[myself]

This makes some sense to me.

1) The agreement between the parties was for the embryo to be brought to term, with no specific restrictions.

2) After the marriage broke down the husband tried to terminate that agreement. The wife offered a modified agreement where she would still birth the child but she would not to seek child support. The husband rejected this agreement. Since he rejected the modified agreement the wife isn't be bound by it.

3) Regardless, the child support is for the child, not for her.

[jooko]

Would the promise to bring to term still hold for you if it was the wife who didn't want to keep it anymore?
The "no child support" bit was found void by the court, so there was in essence no modified agreement. The court pretends the embryo is your ordinary material object, which it isn't, and the decision means men have no control over their DNA and potential parenthood, even before the pregnancy has started.
With viable embryos fertilized by non-sperm DNA coming into play it becomes even funnier: "by making no attempt to remove your hair follicles from the defendants hairbrush you ceded authority over your DNA, also you owe child support".

[myself]

Would the promise to bring to term still hold for you if it was the wife who didn’t want to keep it anymore?

If the husband found another woman willing to carry the child to term, of course.

and the decision means men have no control over their DNA and potential parenthood, even before the pregnancy has started.

Yeah, it's not like he donated sperm for IVF treatments and spent several years working with his wife to bring the resulting embryos to term, with the verbal agreement that all the embryos should be given that opportunity.

With viable embryos fertilized by non-sperm DNA coming into play it becomes even funnier: “by making no attempt to remove your hair follicles from the defendants hairbrush you ceded authority over your DNA, also you owe child support”.

Given how far you've strayed from the facts of the case I'm guessing you realize you don't have much of an argument.

[Dr. Ed 2]

The real issue here is going to be child support and what I’ve always wondered about is the liability of sperm donors, particularly when two lesbians decide to have a child together, and then divorce.

There is a real need to clarify what was once quite clear law — the husband was the father and hence liable for child support, but not if the woman wasn’t married. Then as premarital sex became socially acceptable, society went to absolute liability, the man is liable if it’s his DNA and the woman didn’t have to get the ring first.

Now in the era of test tube babies and sperm donors, we need to clarify things even more — starting with what is the lesbian partner’s liability if they divorce, and what is the innocent sperm donor’s liability. As well as situations like this.

Personally, I was hoping that Hunter Biden's child support case would drag on a bit more because lots of men are getting screwed. There are cases of guys in the Guard getting called up to serve in Iraq or Afghanistan, their military pay being a lot less than the civilian pay their child support was based on, and even though they sent ALL of the military pay, being arrested upon return to the US.

[Sam Bankman-Fried]

It’s 2023—freeze 6 vials of sperm and get snipped.

[Gandydancer]

Because refrigeration is absolutely reliable and sperm in a vial will never deteriorate. But given the presumed genetic contribution to who you are I hope you haven't spawned yet and take your own advice.

[jooko]

Yeah, until a court holds that you promised your sperm and your ex can have all the children she wants with it.

[John F. Carr]

If two people are listed as parents on the birth certficate the system will most likely be content with that. Signing the birth certificate makes a parent, biological or otherwise, liable for child support.

[ReaderY]

“Innocent sperm donor”? The common law of parenting recognizes no concept of guilt or innocence. Nor, at least once a child is born, does contract law apply.

[myself]

The framing here is just hilarious.

There is a real need to clarify what was once quite clear law — the husband was the father and hence liable for child support, but not if the woman wasn’t married. Then as premarital sex became socially acceptable, society went to absolute liability, the man is liable if it’s his DNA and the woman didn’t have to get the ring first.

That poor innocent man who somehow ended up with "his DNA" in the child through no fault of his own.

It must clearly be the fault of the women who forced him to have premarital sex without getting married first! (as women are notorious for doing!!)

As for the child support my understanding is it would be fairly standard to get it changed based on your income, so if those cases really exist I expect they're a lot more nuanced than you imply.

[jooko]

It's all fine and dandy until you consider salvaging sperm from condoms, women being able to go after sperm donors.
There just is not a consideration for whether the man intended to have a child, or even took all reasonable steps to not have one.

[bernard11]

There are cases of guys in the Guard getting called up to serve in Iraq or Afghanistan, their military pay being a lot less than the civilian pay their child support was based on, and even though they sent ALL of the military pay, being arrested upon return to the US.

Cite, please.

[Gandydancer]

Confirming Ed, specific cases here:
https://eagleforum.org/column/2005/mar05/05-03-02.html

[myself]

The first half is some imprecise claims that I don't necessarily trust given the source:

Reservists' child-support orders were based on their civilian wages, and when they are called up to active duty, that burden doesn't decrease. Few can get court modification before they leave, modifications are seldom granted anyway, and even if a father applied for modification before deployment the debt continues to grow until the case is decided much later.

How much is "few", "seldom", and "much later"?

Either way, she lists three examples to back up her claims, so lets dig in.

First, there's a broken link with no name, that's useless. But she describes it as "for failure to pay small amounts of child support, one as little as $322.". So it seems to have nothing to do with the claim of too-high payments based on civilian wages.

Then there's a truck driver who was hospitalized for three years after a car accident... wait... I thought this was supposed to be about reservists? Why's she already talking about random truck drivers?

Finally an actual reservist who was actually jailed for a short period upon returning to US for not paying child support.

Interesting points:

1) He was released after 3 1/2 hours after making the payments, so it apparently wasn't an issue of affordability.

2) He was captured on Aug 30th, held prisoner for three months, (Nov 30th). And arrested upon returning to the US in late February. So even if imprisonment was the reason for missed payments he had months to correct the issue.

3) This is supposed to be about reservists being imprisoned for missed child support because they were called up and couldn't afford the original payments due to their reduced salary. This case has nothing to do with that.

So the only support for Ed's claim is an article that couldn't even find a single relevant example.

Like, it's actually kinda shocking, there's usually at least a few "oh, that's an obvious and egregious miscarriage of justice" examples no matter what the topic. But for Schlafly to actually go 0/3 on her own hand-picked examples? That's pretty exceptional.

[Gandydancer]

My, what a wall of text to refute, "There are cases...". You seem very motivated, and to have done some research... and yet you provide no links of your own, which makes me suspicious that you are hiding something.

1) That refers specifically to the case of Bobby Sherrill, of whom you say, "Finally an actual reservist who was actually jailed...." Dunno where "finally" comes from: He's the first individual mentioned, after five short paragraphs stating Schlafly's POV, which hardly seems to justify whining about having to wait very long. Without a link I cannot confirm what you say about the case, but he WAS jailed and Saddam presumably wasn't forwarding his child support checks. This is a minor win for Schlafly.

2) The "Wilkes Barre, PA judge sentenced 28 to jail" link is dead, not surprising in a 2005 opinion piece. But you count this as a whiff by Schlafly, which is just an assumption on your part.

3) Here's the NYT piece on the truck driver, out from behind the NYT paywall:
http://www.ejfi.org/family/family-33.htm

As you say, no sign that he was a reservist. Just living in a homeless shelter with no way to escape his deadbeat dad status.

So, if you fixate on the "reservist" hook I count the score as 1-0-1, nit 0-3. If you allow that the actual object of concern is the creation of debts that cannot be discharged yet do no good for the offspring... maybe a foul to left and another tipped to the screen, plus what is now, 18 years later, a gap in the tape.

[myself]

My, what a wall of text to refute, “There are cases…”. You seem very motivated, and to have done some research… and yet you provide no links of your own, which makes me suspicious that you are hiding something.

Yes, because your link was the primary source.

1) That refers specifically to the case of Bobby Sherrill,

Here's a link. The original link I found was the same text late February, this one is December, so who knows when he actually got back to the US and got arrested.

Also, the original story also says 3 months while Schlafly says "five terrible months". So apparently I did better research than her.

He’s the first individual mentioned, after five short paragraphs stating Schlafly’s POV

Yeah, I didn't pay super close attention to the ordering and thought he came last. Which isn't relevant.

Without a link I cannot confirm what you say about the case, but he WAS jailed and Saddam presumably wasn’t forwarding his child support checks. This is a minor win for Schlafly.

First sentence from Schlafly, "Most of the reservists called up to serve in the Iraq war have paid a big price: a significant reduction of their wages as they transferred from civilian to military jobs, separation from their loved ones, and of course the risk of battle wounds or death.".

Her example has literally nothing to do with that, it is literally irrevelant.

Oh, and I didn't actually read closely enough last time:
Sherrill, a technician for Lockheed, said he was unable get any mail out after he was taken hostage Aug. 30 in Kuwait.

He wasn't even a reservist, he was a technician for a private company!!!

The whole point was reservists taking a big pay cut to serve their country, not people in the private sector possibly making big $$ for working in a war zone!

2) The “Wilkes Barre, PA judge sentenced 28 to jail” link is dead, not surprising in a 2005 opinion piece. But you count this as a whiff by Schlafly, which is just an assumption on your part.

Sentenced 28 who? Military people? Reservists? Deadbead dads? If one of those cases was more relevant than her irrelevant case she would have used it.

Either way, "failure to pay small amounts of child support, one as little as $322". Doesn't sound like they're getting screwed due to military wage reduction.

3) Here’s the NYT piece on the truck driver, out from behind the NYT paywall:
http://www.ejfi.org/family/family-33.htm

As you say, no sign that he was a reservist. Just living in a homeless shelter with no way to escape his deadbeat dad status.

So nothing to do with her claim.

So, if you fixate on the “reservist” hook

That's the entire point.

The whole article is creating a very sympathetic victim with "oh, these military reservists take a big reduction in wages to do their duty and end up getting screwed by child support payments based on their previous salaries".

And she can't even bring up a single actual case where that happens!!

I count the score as 1-0-1, nit 0-3.

It's a clear 0 for 2 with absolutely no reason to think that her "28 cases" would do any better for the 3rd.

If you allow that the actual object of concern is the creation of debts that cannot be discharged yet do no good for the offspring…

Weird, that wasn't the concern until I determined that the martyrs that Schlafly built her argument on seemed to be fictitious.

[Dr. Ed 2]

Phyllis Schlafly Report.

[Rev. Arthur L. Kirkland]

As he chooses things to write about while striving to divert attention from important legal developments within his areas of traditional interest, Prof. Volokh exhibits strange judgments. Lesbians, drag queens, Muslims, transgender sorority drama, transgender parents, gays, transgender restrooms, divorce-precipitated destiny of frozen embryos . . . even for someone desperate to avoid defamation cases that displease conservatives and un-American conduct by insurrectionists he knew and endorsed, that lineup is bizarre. What the fuck is going on in this guy’s head?

[Gandydancer]

Nothing the fuck is going on in your head. Just pull the string and the same old crap tumbles out every time. Tell us again about you getting banned, Artie.

[John Rohan]

Do you ever have a comment relevant to the article instead of continuously attacking the author?

[ReaderY]

The Reverand attempts to present himself as the voice of civilization, science, and reason. He presents himself as being of a different nature from those he criticises. But he has increasingly been falling short of doing that. Why?

I suspect his problem bears some resemblance to that of St. Stanislaus. But with one critical difference. St. Stansilaus had the self-knowledge, the humility, to know to start saying “we lepers” rather than forge on and keep saying “you lepers.” That’s why he succeeded. The Rev. Kirkland might consider his example.

[ReaderY]

This is an important open contemporary legal question. It won’t interest all readers, but it will interest many. Why object to this? I increasingly skip Professor Volokh’s posting of every libel case and such, but it’s been part of the blog for years to do a post on a possibly interesting miscellaneous off-topic case every now and then.

[ReaderY]

Consider a hypothetical with facts very different from this case. The ex-wife wants the baby, but wants her new beau to be the legal father. The ex-husband objects.

Could the model law the Maryland Appelate Court spoke of approvingly, providing that divorced biological fathers are automatically not the legal fathers, be challenged under Stanley v. Illinois, on grounds that under Stanley v. Illinois a state cannot categorically take away a biological father’s parental rights simply because he isn’t married?

Does Dobbs cast doubt on Stanley v. Illinois? Does Dobbs give states more power to decide questions of family law as they see fit than before?

[ReaderY]

As this is doubtless an important and unsettled question, why leave the opinion unpublished?

[The Margrave of Azilia]

And what’s with the unpublished status? We’re reading it now, aren’t we?

Or does that mean it won’t be put in the official reports? Yet the official reports (inc. online) are put out by private entities – can the courts stop private entities from publishing?

Is this some legal fiction like a legislative day?

What happens if another court decides to use the “unpublished” opinion as precedent? Is unpublished status a signal that the reasoning is so bad other courts can’t rely on it?

[ReaderY]

My personal view is that there should be no such thing as non-precedential opinions. If there was jurisdiction and a judgment on the merits, it’s a precedent. And courts should have to decide all cases with the care inherent in knowing that any opinion they write can be followed in other cases.

[Carey Allison]

All this rather tiptoes around the issue that the family courts regard the male as primarily important as the holder of a wallet that can be assessed. Whether he is the sperm donor is of secondary importance, as evidenced by the numerous states that refuse to consider DNA proof of non-paternity in setting or in voiding child support obligations. Men, perhaps exclusive of white knights, are aware of this as are all feminists, who generally support the notion.

As to "the best interest of the child/children" - the best way for Joshua to deal with any future order for child support for the second child (if born) is to advise the judge he will continue to pay support for the first child, but will cease all child support payments if ordered to pay child support for a second child birthed under the circumstances as presented in the article.

Would there be consequences for such a declaration and stand? Of course! If one fails to genuflect sufficiently before the black robe, there is always a penalty. But freedom isn''t free - it never has been! Lastly there will be the feminist argument that this would just hurt the children. The male individual in this case, if even in court for a determination of child support for the second child he did/does not want is, unfortunately, already in a war for his wallet, and if he loses he will be effective reduced to the status of a financial serf. Wars produce collateral damage and innocent victims. The mother should realize this and limit her requests accordingly to avoid initiating such a war.

In general, this should be the approach of any man who finds himself in a child support situation that results in him and his ex-wife having significantly different standards of living!

[Gasman]

This is a case where the wisdom of Solomon would work.
The undifferentiated blastocyst may be literally split, and each can if implanted, develop into a healthy child. Or be destroyed, as each party sees fit.

So let it be written, so let it be done.