Court: Destroy frozen embryos
Sidestepping an ethical quandary, the Washington state Supreme Court ruled yesterday that two frozen embyros caught up in a bitter divorce should be destroyed.
The ruling overturned a lower-court decision awarding custody of the embryos to David Litowitz of Federal Way, whose sperm contributed to the embryo, along with a donated egg.
Rights to the embryos, the court ruled yesterday, don't hinge on genetics, but on the contract David and Becky Litowitz signed with the center where the embryos were frozen. And those contract provisions, the court said, call for disposal of the embryos.
"It is not necessary for this court to engage in a legal, medical or philosophical discussion" whether these pre-embryos are 'children,' or whether Becky Litowitz is legally their parent, Justice Charles Z. Smith wrote in the 8-1 decision. "We base our decision in this case solely upon the contractual rights of the parties under the pre-embryo cryopreservation contract."
The court cited a provision in the contract the couple signed in 1996 with Loma Linda University's Center for Fertility and In Vitro Fertilization in California. It said that after five years, the embryos would be thawed and "not allowed to undergo any further development" unless the couple requested they be frozen longer, and the center agreed.
The case is the first in Washington to attempt to resolve a dispute over disposition of frozen embryos in a divorce case, the justices noted. All high-court cases in other states cited by the justices have involved embryos with genetic material from both parties.
In the decision, the justices said that they did not know whether the embryos were still frozen, but that the five-year time period should have elapsed last year. In fact, the embryos remain frozen.
The justices noted that if the embryos still exist "they would be a proper subject for consideration for the court" under the contract. Several lawyers interpreted that to mean that the fate of the embryos is not sealed if the California center doesn't read the ruling as an ultimatum and if Becky Litowitz wants to continue the court fight.
Colleen Grady, Becky Litowitz's lawyer, said her client may ask the state Supreme Court to reconsider.
Becky Litowitz, of Enumclaw, wants to have the embryos implanted into a surrogate mother so she can raise the resulting children. She has been paying storage fees to the center, Grady said.
The Litowitzes already have a 5-year-old girl born to a surrogate mother who was implanted with three embryos created at the same time as the two in dispute.
"Her motivating force in this situation is a belief that if one creates life, one has an obligation to protect it," Grady said.
As part of the couple's divorce case, a Pierce County Superior Court judge, citing the "best interest of the child," awarded the embryos in 1998 to David Litowitz, who promised to put the embryos up for adoption.
A state appeals court affirmed that decision, saying David Litowitz could not be forced to become a father again. Becky Litowitz, it said, had no right to require the embryos be brought to life because she didn't provide the eggs.
Becky Litowitz appealed, saying the decision denied her right to be a parent as specified in the in-vitro fertilization contract. She also argued the decision violated the Litowitzes' pact with the egg donor not to give the eggs to a third party, and the right of her child to be raised with her siblings.
Yesterday's ruling put the issue squarely onto the murky provisions of a contract signed with Loma Linda. And it prompted outcries from both Becky Litowitz's lawyer and Justice Richard Sanders, who wrote a spirited dissent.
The contract signed by the Litowitzes specified that in certain circumstances, the embryos should be thawed and not allowed to develop. Those circumstances include the couple's death, their mutual withdrawal from the program, a shutdown of the center's fertilization and cryopreservation program or the couple's failure to ask to renew the embryo-freezing contract after five years. Divorce was not mentioned.
The court focused on the five-year period, saying that provision applied in this case. The court calculated that the time period should have expired in March 2001.
But Sanders said that part of the contract was not applicable, because it covered only mutual decisions by the couple. Another part of the contract said if the Litowitzes disputed the outcome of the embryos, a court should decide. The trial court properly did that, Sanders said, awarding the embryos to David Litowitz. Neither side argued the embryos should be destroyed, Sanders noted.
Grady, Becky Litowitz's lawyer, said the court shirked its obligation to provide guidance to those who find themselves in disputes with partners over embryos.
"They don't give the citizens of this state any help at all," she said. "They sidestepped and avoided the issue. We look to these nine supreme scholars to give us direction, and they dropped the ball."
Bart Adams, David Litowitz's lawyer, said his client was happy with the decision because he doesn't want to have more children with his ex-wife.
Lisa Stone, executive director of the Northwest Women's Law Center, which entered the case as a friend of the court, said the center also was pleased because the court gave equal rights to Becky Litowitz, even though her genetic material was not involved.
"That sets a good benchmark protection for infertile people and lesbian and gay parents who aren't biologically related to their children," Stone said.
The case hardly seems at an end, and indeed, the Litowitzes' custody battle over the 5-year-old continues. The girl lives with her father under a temporary order issued after he accused Becky Litowitz of drug abuse and hiring someone to kill him.
Grady said she would not comment on the accusations.
"Anybody can say anything," she said.
Grady said her client may ask the state Supreme Court to reconsider, given that the embryos still exist.