Approximately 9% of all married women and all married men, respectively, aged 15 to 49, experienced some form of infertility between 2015 and 2019. Between 2012 and 2021, the number of assisted reproductive technology (“ART) processes, like in vitro fertilization (“IVF”), more than doubled. In 2021, parents who underwent ART treatments helped facilitate 97,128 babies in total, equivalent to 1 in every 42 babies born in the United States. ART processes involve retrieving a woman's eggs from her ovaries, combining them with a male's sperm in a laboratory, and returning the newly created zygotes, to the woman's body or donating them to another woman where they mature into an embryo. This process does not always occur concurrently. Embryo freezing, also known as cryopreservation, freezes and stores fertilized eggs for later implantation using an ART process like IVF.
Scientifically, an embryo is defined as “an animal in the early stages of growth and differentiation that are characterized by cleavage, the laying down of fundamental tissues, and the formation of primitive organs and organ systems especially the developing human individual from the time of implantation to the end of the eighth week after conception.”
Legally, the definition and legal status of an embryo have been called into question in light of the 2022 Supreme Court decision in Dobbs v. Jackson Women's Health Organization. As such, Ohio courts have overhauled the status of cryogenically frozen embryos. In Ohio, to engage in delayed assisted reproductive technology processes, like IVF, which requires the embryos to be frozen for a period of time, an individual or couple must enlist the services of a Cryopreservation Bank. If a couple decides to freeze their embryos, a healthcare provider will require them to read and sign consent forms, sometimes referred to as Informed Consent-Embryo Cryopreservation Agreements, which detail the process of cryopreservation, the method and duration of storage, and decisions that must be made in the event of contingencies
Before the 2022 Dobbs decision, Ohio courts used three methodologies to determine the disposition of embryos in contested litigation. The first method, Contemporaneous Mutual Consent, dictates that the embryos should remain in storage until the parties can reach an agreement regarding their disposition 1. The second method, the Balancing Test, was employed when no valid pre- or post-embryo preservation contract existed. Under the Balancing Test, the court was required to balance the interests of all parties involved including the mother, father, any existing children, and the potential child arising from the embryo 2. The final approach was the Contractual Method, which was employed by a majority of jurisdictions 3. The Contractual Method reasoned that the fact that both parties expressed their intention to address the allocation of the embryos pursuant to the terms of the Informed Consent-Embryo Cryopreservation Agreement contracts, demonstrates that both parties intended to treat the embryos as marital property 4. Moreover, the Supreme Court agreed that a “valid contract would remove any constitutional concerns as it would have represented the parties' knowing and voluntary intentions at the time of the IVF treatment” 5.
Kotkowski-Paul v. Paul (2022), decided pre-Dobbs, was only the third time an Ohio court adjudicated on the disposition of embryos. Unlike the two previous Ohio decisions, Karmasu v. Karmasu and Cwik v. Cwik, which were decided under the Contractual Method, while the parties both stipulated that they signed an Informed Consent-Embryo Cryopreservation Agreement, neither party could produce a copy of the contract 6. Therefore, although the trial court recognized that the stipulation alludes to the parties' intention to treat the embryos as marital property, without the contract to guide its decision, the court chose to use the Balancing Approach to determine the disposition of the embryos 7. In its analysis of the Balancing Approach the trial court weighed the mother's desire to effectuate the birth of a child, the father's adamant proclamation that he does not want the added responsibility of a new child, the existing children's confusion over the potential status of their sibling, and the potential child's hardship as a result of the father's refusal of his parental status 8. While the court recognized each individual's constitutional right to procreate, or not to procreate, ultimately the court found that, as a matter of public policy, forced procreation and involuntary parentage are not amenable to judicial enforcement 9. Therefore, the trial court ordered, and the appellate court upheld, the embryos be awarded to mother who must either donate them or destroy them (Id. at 69).
Dobbs v. Jackson introduced the concept of embryos as “potential life” which fundamentally altered the definition of embryo in a legal setting.
E.B.N. v. R.N. (2024) highlighted Ohio courts' usage of this new classification of embryos in a legal setting. In this case, Husband and Wife could not agree to the disposition of their frozen embryos on divorce where Husband wanted the embryos donated and Wife wanted them for her personal use 10. When deciding the allocation of the embryos, the trial court rejected the previous three methods of reasoning applied in these types of cases, the Contemporaneous Mutual Consent, the Contractual, and the Balancing Approaches, believing them all inadequate because they regard embryos as property and “do not account for the fact that what is involved is not property, but life or the potential for life” 11. Furthermore, the trial court denotes Ohio's express public policy to prefer preservation and the continuation of life whenever constitutionally permissible 12. Although both parents wishes are in accordance with Ohio's public policy, the court advances the notion that Husband's decision to fertilize Wife's eggs that produced the embryos in question served as his consent to create offspring biologically related to him 13. As a result, the court award the Wife the remaining embryos believing her request to be more consistent with honoring the parties wishes at the outset of the IVF services to create a child 14.
The impact of the E.B.N v. R.N. decision throws into question the validity and enforceability of not only Informed Consent-Embryo Cryopreservation Agreements, but all other contracts, like prenuptial and postnuptial agreements, that deal with the disposition of embryos. If you or someone you know is considering IVF, be sure to contact a lawyer so that you can move forward with a complete understanding of your options and the potential implications of your decision.
Footnotes
1. Jessee v. Jessee, 74 Va. App. 40,866 S.E.2d 46,51-52 (Va. 2021)
2. McQueen v. Gadbery, 507S.W.3d 127, 144-147 (Mo.2016)
3. Kotkowski-Paul v. Paul, 2022-Ohio-4567, 204 N.E.3d 66, ¶76; Karmasu v. Karmasu, 5th Dist. Stark No. 2008 CA 00231, 2009-Ohio-5252; Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463; Bilbao v. Goodwin, 333 Conn. 599, 217 A.3d 977, 992 (Conn.2019); Szafranski v. Dunston, 2015 IL App (1st) (Ill 2015)
4. Id.
5. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)
6. Kotkowski-Paul v. Paul, at ¶70
7. Id. at ¶76
8. Id. at ¶79-82
9. Id. at 80. Citing Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) and A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051,1057 (Mass. 2000)
10. E.B.N. v. R.N., 2024-Ohio-1455, P18
11. Id. at P10-11
12. Id. See O.R.C. 9.041 Ann
13. Id. at P19
14. Id. at P20
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