Jessica used her eggs, and Timothy used his sperm, to create embryos. One of them was implanted into Jessica, and a child resulted. The remaining embryos were frozen. Then the couple divorced. They had signed a contract saying that if they divorced, the remaining embryos would be discarded. But Timothy changed his mind and wanted to keep them, just in case they got back together, or failing that, to donate them to someone else. Two court battled ensued. He lost both, each for different reasons.

In the first battle, judge Robert Nastri of the Connecticut trial court ruled that the embryo contract was unenforceable. It was “little more than a checkbox questionnaire,” he said, and furthermore it lacked consideration. Having ruled the contract invalid, judge Nastri proceeded to balance the competing interests of the situation. He decided to give the embryos to Jessica, so she could discard them. The rationale was that Timothy “had a reasonable possibility of achieving parenthood by other means — as evidenced by his six other children — and Jessica’s right to avoid procreation outweighed Timothy’s desire to give the embryos to strangers.”

Timothy appealed and lost. In the appeal decision, Bilbao v. Goodwin, the Connecticut Supreme Court didn’t even get as far as balancing competing interests, because they ruled the contract was valid and enforceable after all. This meant the embryos would be discarded. (The court calls them “pre-embryos,” which are more or less the same thing as “embryos,” but are a few days younger.)

The fact that there were checkboxes in the contract was not a problem. “An agreement in which parties indicate rights or responsibilities by checking a box is not insufficient for that reason alone,” the appeal court ruled, adding that checkboxes “are routinely used in a wide range of important and legally binding documents. Even Connecticut trial courts routinely use checkbox forms to issue legally binding orders.”

Moreover, “any suggestion that the checkboxes were evidence that the parties had not seriously considered the issue is contradicted by the agreement itself, and the testimony of both parties.” (The contract offered four checkbox options on what to do with the embryos in the event of divorce: 1. give them to Jessica; 2. give them to Timothy; 3. give them to a third party; or 4. discard them. They checked box 4, initialed beside it, and signed the agreement in full on the next page. They also acknowledged that they had discussed it with a physician.)

On the issue of whether the contract lacked consideration, the appeal court ruled that it did not: Jessica and Timothy both made mutual promises to contribute gametic material. Moreover, the fertility clinic, in exchange for the certainty provided by the parties’ election of a disposition in the event of divorce, promised to store the pre-embryos. “Thus, all parties to the agreement received consideration,” said the appeal court, adding that in law generally, the mere “exchange of promises” qualifies as sufficient consideration.

That ended the matter. According to the appeal court, the contract was valid. It said to discard the leftover embryos, so that’s what had to be done. Period. Therefore, the bumpy journey of balancing competing interests — as judge Nastri had done — didn’t even need to be embarked upon. In this case, the issues became quite profound. For example, Timothy said an embryo is a human life, therefore it ought to be preserved. The appeal court did not need to address this question.

Another question it did not need to address was which approach a court should take in cases where there is no enforceable contract. The appeal court left “for another day” the question of whether the “balancing approach,” or the “contemporaneous mutual consent approach” (which gives both parties ongoing veto power) would be the way to go. Jurisprudence from other U.S. states strongly favours the former approach, which is basically what the trial judge had done here: in the balance, Jessica’s interest in not having another child with Timothy — whom she had just divorced — outweighed his desire to give the embryo to a stranger.

It is interesting to speculate on whether the balancing approach might have tipped the scales in Timothy’s favour had the facts been different. If, say, he didn’t already have six kids but was childless, and if, say, the frozen embryos were his last chance to have a biological child because he was now infertile due to some disease such as cancer, a court might well have allowed him to go ahead and make a baby, and tough luck for Jessica. She would just have to deal with the resulting awkwardness. This type of “forced parenthood” has been ordered several times in the U.S. — a recent example is the 2019 Arizona case Terrell v. Torres — in last-chance situations.

For advice on family law issues and fertility law issues, contact Shirley Levitan.