Last week, in Part 3 of 6, we discussed the contractual approach (as labelled by Mr. R. Benjamin Vojtik, our law clerk who boiled down his research into readable format for us). Today we continue our examination of the three different approaches in current use by different states, in an effort to – perhaps – predict where the California Supreme Court may lean when this issue reaches the highest court in our state.
The Contemporaneous Mutual Consent Approach.
This approach proposes that no pre-embryo should be used by either partner, donated to another patient, used in research, or destroyed without the contemporaneous mutual consent of the couple that created the pre-embryo.
Iowa and Massachusetts have decided to apply the contemporaneous mutual consent approach.
In re Marriage of Witten (2003) 672 N.W.2d 768, the Supreme Court of Iowa found that it would violate public policy for a court to enforce a prior agreement between partners who created a human pre-embryo as part of an in vitro fertilization program when one of the partners has changed his or her mind concerning the disposition or use of the pre-embryo, as would enforcement of an agreement between a couple regarding their future family and reproductive choices.
In A.Z. v. B.Z. (2000) 431 Mass. 150, the parties had a successful IVF procedure in which Wife gave birth to twins. Wife expressed an interest in having additional children, for which IVF is necessary, as she has no functional fallopian tubes. The parties’ consent form to the frozen pre-embryo stated that should the parties become separated the pre-embryo will be given to Wife. The Court found that the contract was ambiguous as “separated” does not necessarily mean “divorced.” The Massachusetts court went on to say that even had the contract been unambiguous, the agreement should not be enforced as it involves “personal rights of such delicate and intimate character that direct enforcement of them by any process of the court should never be attempted.” (Id at p. 162).
This Contemporaneous Mutual Consent Approach preserves an individual’s reproductive autonomy, or freedom to avoid unwanted procreation. This method is also very simple for courts to apply.
Reber v. Reiss (2012) 42 A.3d 1132 states at p. 1135, footnote 5, “This approach strikes us as being totally unrealistic. If the parties could reach an agreement, they would not be in court.”
Szafranski v. Dunston (2013) 993 N.E.2d 502, at p. 512 states “the contemporaneous mutual consent model gives each progenitor a powerful bargaining chip at a time when individuals might very well be tempted to punish their soon-to-be ex-spouses, which makes no sense and may invite individuals to hold their ex-partner’s ability to parent a biologically related child in order to punish or to gain other advantages.”
Szafranski suggests that this may lead to a “you take the pre-embryo but I get the house and business” scenario in which one spouse would only be able to reproduce should they enter into an unfavorable property settlement or unfavorable support terms. It may also create a rollercoaster for the spouse wishing to reproduce as the other spouse may hint that they may consent at some time in the future.
These are valid criticisms. Supporters of this approach, however, would suggest that these downfalls are necessary in order to preserve an individual’s reproductive autonomy, and freedom to make contemporary decisions regarding their family.