April 30, 2019
[Copyrighted Material Omitted]
Superior Court in the judicial district of Hartford and tried
to the court, Nastri, J.
P. Secola, with whom, on the brief, was Timothy R. Goodwin,
self-represented, for the appellant (defendant).
T. Garosshen, with whom were Brendon P. Levesque and, on the
brief, Michael S. Taylor, for the appellee (plaintiff).
I. Jennings-Lax and Louise T. Truax filed a brief for the
Connecticut Chapter of the American Academy of Matrimonial
Lawyers as amicus curiae.
Louise Lowery Gitchell, pro hac vice, Philip S. Walker and
Joanne F. Davis filed a brief for the American Association of
Pro-Life Obstetricians and Gynecologists as amicus curiae.
Judges: Robinson, C. J., and Palmer, McDonald, D'Auria,
Mullins, Kahn and Ecker, Js. In this opinion the other
Conn. 601] D'AURIA, J.
this appeal, we are called on to determine how pre-embryos
created through in vitro fertilization should be distributed
upon the divorce of their progenitors. The plaintiff, Jessica
Bilbao, and the defendant, Timothy R. Goodwin, were married
and underwent in vitro fertilization in an effort to have
children. Several pre-embryos resulting from that treatment
were [333 Conn. 602] stored for implantation in the
future. As part of a storage agreement
with the fertility clinic, the parties unequivocally stated
that they wanted the pre-embryos discarded if they ever
divorced. Their marriage has since been dissolved, and the
plaintiff now seeks to have the pre-embryos discarded in
accordance with the storage agreement. The defendant argues
that the agreement is unenforceable, however, and wants the
pre-embryos preserved or donated. The
trial court concluded that the storage agreement was
unenforceable but awarded the pre-embryos to the plaintiff.
We conclude that the storage agreement is enforceable and,
therefore, reverse the trial court's judgment insofar as
the court determined that the agreement was not enforceable.
record reveals the following undisputed facts as found by the
trial court and contained in exhibits submitted by the
parties. The parties were married in 2011. Soon after, they
began efforts to have a child through in vitro fertilization
with the assistance of the [333 Conn. 603] University of
Connecticut School of Medicine's Center for Advanced
Reproductive Services (center). The treatment produced
several pre-embryos, one of which was transferred to the
plaintiff's uterus and resulted in the birth of a child.
The center cryopreserved the remaining
Originally, the parties had planned to have another child
using the remaining pre-embryos. But, together, they also
planned for certain contingencies by entering into a storage
agreement with the center: a four page form entitled "
Consent for Cryopreservation and Storage of Embryos"
that provided for the disposition of the pre-embryos upon
death or divorce. Specifically, the agreement offered four
checkbox options relative to divorce: leave the pre-embryos
to the female party, to the male party, to a third-party
designee of their choice, or have them " discarded
according to American Society for Reproductive Medicine
Ethical Guidelines." The parties opted to have the
pre-embryos discarded, which they manifested by checking the
appropriate box, initialing that selection, and signing the
agreement in full on the next page. The parties also
acknowledged in the agreement that they had discussed the
agreement with a physician, and the agreement provided that
the parties could modify their selection through written
consent signed by both of them.
Conn. 604] In September, 2016, the plaintiff filed this
action for dissolution of marriage. With the assistance of
counsel, the parties reached a settlement agreement that
resolved all of their disputes except for the allocation of
debt from a home loan and the disposition of the pre-embryos.
The debt allocation is not part of this appeal. Regarding the
pre-embryos, the plaintiff asked the trial court to order
that they be discarded in accordance with the storage
agreement. The defendant wanted the pre-embryos preserved so
that the parties could try to have additional children in the
event they reconciled or, alternatively, wanted the
pre-embryos to be put up for adoption.
record also reveals the following procedural history.
Although the parties each had counsel in drafting the
settlement agreement, they represented themselves in this
matter before the trial court. To resolve the disputes
regarding the debt allocation and pre-embryos, the trial
court held a brief proceeding at which both parties
testified. The plaintiff submitted the settlement agreement
and storage agreement as exhibits, but neither party filed a
substantive motion, submitted a brief, or argued legal
matters to the court.
trial court issued a memorandum of decision in which it
incorporated the settlement agreement and resolved the debt
dispute. Regarding the pre-embryos, it determined that the
storage agreement was not enforceable. In the absence of an
enforceable agreement, the court proceeded as if the
pre-embryos were " property" subject to
distribution under General Statutes §
46b-81, [333 Conn. 605] concluded that
the plaintiff's interest in the pre-embryos outweighed
the defendant's interest and, therefore, awarded them to
defendant appealed to the Appellate Court from the trial
court's judgment awarding the pre-embryos to the
plaintiff. The appeal was then transferred to this court. See
General Statutes § 51-199 (c); Practice Book § 65-1.
appeal, the defendant appears to make two claims of error,
both of which presuppose that the trial court correctly
determined that the parties lacked an enforceable agreement.
The defendant agrees with this portion of the trial
court's analysis but disagrees with the trial court's
determination that the plaintiff's interest in the
pre-embryos outweighed his interest. Specifically, both of
the defendant's claims are rooted in his factual premise
that a pre-embryo is a human being. First, he claims that the
trial court incorrectly determined that a preembryo is "
property" subject to distribution under § 46b-81.
Specifically, he argues that a [333 Conn. 606] pre-embryo is
human life and, as such, must be awarded to the party seeking
to preserve it. Second, he claims ...