Argued
April 30, 2019
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Nastri, J.;
judgment dissolving the marriage and granting certain other
relief, from which the defendant appealed. Reversed in
part; vacated in part; order directed.
Joseph
P. Secola, with whom, on the brief, was Timothy R. Goodwin,
self-represented, for the appellant (defendant).
Scott
T. Garosshen, with whom were Brendon P. Levesque and, on the
brief, Michael S. Taylor, for the appellee (plaintiff).
Leslie
I. Jennings-Lax and Louise T. Truax filed a brief for the
Connecticut Chapter of the American Academy of Matrimonial
Lawyers as amicus curiae.
Rita
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.
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
OPINION
D'AURIA, J.
In 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 stored for implantation in the future.[1] 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.
The
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 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 pre-embryos.[2]
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.
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.[3]
The
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.
The
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,
[4]
concluded that the plaintiff's interest in the
pre-embryos outweighed the defendant's interest and,
therefore, awarded them to her.
The
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.
On
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 pre-embryo is
‘‘property'' subject to distribution
under § 46b-81. Specifically, he argues that a
pre-embryo is human life and, as such, must be awarded to the
party seeking to preserve it. Second, he claims that, even if
a pre-embryo is property under § 46b-81, the trial court
improperly failed to employ a legal presumption in favor of
the party seeking to preserve it because it is a human
being.[5]
In
response, the plaintiff argues that the trial court was
incorrect that the parties had no enforceable agreement and,
therefore, urges us to affirm the judgment on this
alternative ground. See Practice Book §§ 63-4 and
84-11. We agree with the plaintiff that the parties'
agreement providing for the disposition of their pre-embryos
upon divorce is enforceable. Our holding necessarily defeats
the defendant's claims, which are premised on the
prerequisite determination that the contract was
unenforceable. To the extent that the defendant's claims
include an argument that a contract requiring the destruction
of pre-embryos is unenforceable as a matter of public policy
because a pre-embryo is a human being, we find this issue
unreviewable because he failed to present any evidence at
trial to support the factual premise that a pre-embryo is a
human being. See footnotes 5 and 8 of this opinion.
As a
predicate to the defendant's claims, we first must
determine whether the parties' storage agreement, which
unambiguously provided that the pre-embryos should be
discarded in the event of divorce, is enforceable between the
plaintiff and the defendant. The trial court held that it was
not enforceable because it lacked consideration and indicated
the parties' disposition selection in the form of a
checkbox. The defendant agrees with the trial court's
analysis. The plaintiff argues that the agreement was
supported by consideration and that the checkbox nature of
the agreement did not render it insufficient. We agree with
the plaintiff.
The
following additional procedural history is relevant. At
trial, the enforceability of the storage agreement was
central to the dispute, and the parties' respective
positions were clear. The plaintiff submitted the storage
agreement as evidence and stated that she wanted its terms
enforced, as the parties had originally agreed. The defendant
admitted that he originally had agreed to discard the
pre-embryos if the couple ever divorced but argued that he
had since changed his mind and that this provision of the
agreement no longer bound him.
In its
memorandum of decision, the trial court noted the lack of
Connecticut authority on this issue, considered the law in
other jurisdictions, and adopted a two step approach to
resolve the dispute. First, it would decide whether the
parties had an enforceable agreement that provided for the
disposition of the pre-embryos. Second, in the absence of an
agreement, it would balance their respective interests in the
pre-embryos. In conducting the first step, the trial court
concluded that the consent form was not an enforceable
agreement because it ‘‘was little more than a
‘check the box questionnaire,' which had
‘‘neither consideration nor a promise.''
It then proceeded to the second step, determined that the
plaintiff's interests in the pre-embryos outweighed the
defendant's interests, and awarded them to her.
In the
sections of this opinion that follow, we describe the current
state of the law on pre-embryo disposition upon divorce and
conclude that the trial court properly considered whether the
parties had an enforceable agreement, but we also conclude
that the trial court incorrectly determined that the ...