Court of Appeals considers cryopreserved embryos

A little more than a week ago, the Minnesota Court of Appeals issued a decision that assures us that the future is alive and well: Ruckers v. Ruckers, No. 55-FA-14-5800, 2016 WL 7439094 (Minn. Ct. App. December 27, 2016). The Ruckers were married in 1998. Wife filed a petition for dissolution in 2014. A number of issues (including custody of the minor children, child support, property division and spousal maintenance) were appealed following a six-day trial. The Minnesota Court of Appeals affirmed. However, the Court of Appeals reversed the District Court's award of the parties' two cryopreserved embryos to Wife. The relevant embryos had been stored at the Mayo Clinic since 2008. The District Court's award of the embryos to Wife was based on its reading of a form titled "Consent Regarding IVF Services." That form was provided to the Ruckers by the Mayo Clinic, and included a check-the-box section addressing what the clinic was to do with the cryopreserved embryos in certain circumstances - including divorce. According to the consent signed by the Ruckers, should the parties elect to dissolve their marriage, as to the embryos, the clinic was required to "[c]ontinue to [s]tore for transfer to female partner." In its findings, the District Court noted that Wife wanted the embryos, pursuant to the consent, so that she may elect to have them destroyed in light of the dissolution of the parties' marriage. On the other hand, the District Court suggested that Husband desired to have the embryos awarded to him, to continue to store them indefinitely, at his own expense. The District Court determined that the consent was a binding contract, and based the consent's reference to "transfer to female partner" to mandate award of the embryos to Wife. On appeal, Husband argued that the plain language of the consent requires that the embryos be stored. Ultimately, the Court of Appeals agreed. Judge Tracy Smith began with an analysis of basic contract principles, including the notion of ambiguity as a potential defense to the enforcement of an alleged agreement. However, the Court of Appeals ultimately determined that the relevant consent was unambiguous insofar as the term "transfer" is concerned. In this context, "transfer â?¦ refers to placing the embryos in the female partner in an attempt to produce a pregnancy â?¦ [not] an assignment or conveyance of the embryos for purposes of changing the custodian or keeper." In reversing, the court referenced the entirety of the consent, including its provisions suggesting that "[i]n the majority of cases, more oocytes are retrieved and fertilized than may be necessary to achieve a pregnancy. When this situation occurs, two options existâ?¦" The first involves a "transfer" of the ideal number of fertilized oocytes and discarding the remainder. The second involves a "transfer" of the ideal number of fertilized oocytes and storing the remainder through cryopreservation. The consent further provides that "[t]ransfer of cryopreserved embryos after an unsuccessful embryo transfer of fresh embryos improves the overall chance for a successful pregnancy. If at some time in the future a transfer is considered, the fertilized oocytes will be thawed and examined. If it appears that they are viable, the transfer will be undertaken." The Court of Appeals found that the use of the term "transfer" in the provisions noted above "unambiguously (a) does not refer to an assigned or conveyance of the embryos for purposes of changing their custodian or keeper; and (b) does refer to using the embryos in an attempt to produce a pregnancy." (Emphasis in original). Therefore, Smith opined, the District Court's reading of the form was incorrect. Disposition of the embryos, based upon that reading, required remand. Ruckers presents a case of first impression in Minnesota - not on the issue of contract interpretation, but insofar as the content of the contract is concerned. No other appellate decision, reported or unreported, has addressed the issue of an award of cryopreserved embryos. Other states have taken up the issue, in the absence of any federal law addressing disputes over ownership of frozen embryos. Frankly, the results are disturbing - in the sense that there is a lack of agreement on how to define, and treat, an embryo. Is an embryo "life" or "property?" Can an individual become a "forced" parent? Which party's rights are superior? The one who wishes to become a parent, or the one who does not wish to become a parent? Are general principles of contract interpretation, or the best interest of a potential child, paramount? As the number of cryopreserved embryos continues to grow (to approximately 1 million in the United States), the foregoing questions have become less like a law school hypothetical. Across the country, three approaches to the issue have emerged: (1) contractual; (2) contemporaneous mutual consent; and (3) balance of interests. The contractual approach (seemingly adopted in Ruckers) looks to the agreement of the parties prior to the creation of embryos. New York, Washington and Texas have also adopted this approach. At the other extreme, however, the Massachusetts Supreme Court has outright refused to enforce any contractual agreement concerning frozen embryos, noting that "[a]s a matter of public policyâ?¦ forced procreation is not an area amenable to judicial enforcement." The contemporaneous mutual consent approach requires both parties to consent to the use of the embryo before it may be transferred to a female recipient. The state of Iowa has embraced the notion that "[n]o embryo should be used by either partner, donated to another patient, used in research, or destroyed without the mutual consent of the couple that created the embryo." The balancing of interests involves the court weighing the perspective of each party, insofar as use, or destruction, of the embryo is concerned. New Jersey, Tennessee and Pennsylvania courts have adopted this approach. "Balancing" cases typically involve one party's desire to become a parent, and their relative position in terms of future procreation. For example, a court in New Jersey opined that it would not "force [Wife] to become a biological parent against her will" because it was not Husband's last chance at fatherhood. So where do we stand? While Ruckers appears to adopt the contractual approach to embryos, the decision was unreported. Moreover, the Court of Appeals remanded, requiring the Ruckers to return to the District Court for further input. Will another appeal follow? That seems likely. After all, it appears that the District Court will now be compelled to do something other than apply the contractual approach to the Ruckers, because the contract, in this case, does not speak to ownership. Will the District Court balance the interests of the Ruckers? Will it require mutual consent for further use, or destruction of the embryos? Will the Court of Appeals approve of either approach? The Minnesota Supreme Court? Hold on to your hats and glasses. ----- Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices P.A., a northwest Twin Cities divorce and family law firm. Published: Thu, Jan 12, 2017