The Contractual Approach to Assisted Reproductive Technology Litigation

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The Contractual Approach to Assisted Reproductive Technology Litigation

By: Jennifer S. Tier / April 1, 2020



Current laws fail to protect parties making agreements relating to their frozen embryos. Courts using the contractual approach to Assisted Reproductive Technology litigation must carefully examine these so-called agreements to determine whether they are valid in a divorce context.


In 2002, there were approximately 346,000 frozen embryos in the United States1. By 2017, the number of frozen embryos grew to approximately 1,000,0002. People are turning to assisted reproductive technologies (ART) at an exponential rate. Yet, as so often happens when technology accelerates at lightning speed, the law is slow to catch up.


Take the scenario of a married couple who have trouble conceiving and use in vitro fertilization (IVF). The couple is under extreme stress, both emotionally and monetarily. At the fertility clinic, they are given a stack of paperwork six inches thick. One of the forms is a lengthy questionnaire about the disposition of any remaining frozen embryos. One of the questions states “In the event the patient is divorced any remaining frozen embryos will, A) Be awarded to Wife, B) Be awarded to Husband, C) Be donated to research, D) Be donated to another couple, or E) Be destroyed.” The Wife fills out the form; checks the box that the embryos will be awarded to her; and the Husband signs. The couple has no actual discussion about this issue nor do they receive any legal explanation or advice.


The couple successfully has one child and six remaining frozen embryos. Then they get divorced. Husband is adamant that he does not want Wife to be able to use the remaining frozen embryos as he does not want more children with Wife. Wife wants more biological children. She argues that because Husband signed the form, she should be awarded the embryos. Further, Wife argues Husband would not be the legal “father,” although the form makes no mention of the conditions that would determine whether Husband is the legal father.


The Contractual Approach to Assisted Reproductive Technology Litigation (ART)
State courts are trending towards a “contractual” approach for deciding the complex problems presented by this scenario. Under this common approach, Wife would be awarded the embryos because the parties had an agreement (the form where Wife checked a box at the fertility clinic). In fact, a similar scenario is presently before the Supreme Court in the case of Bilbao v. Goodwin. In adopting this contractual approach, courts have shown a preference toward honoring agreements between parties.


Courts want to encourage people to have serious and lengthy discussions about these highly personal issues. Specifically, in Kass v. Kass, 91 N.Y.2d, 544, 5673 N.Y.S.2d 350, 696 N.E.2d 174, 180 (1998), the court noted:


“… parties should be encouraged in advance before embarking on [in vitro fertilization] to think through possible contingencies and carefully consider their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of litigation are simply incalculable…to the extent possible, it should be the progenitors – not the State and not the court – who by their prior directive make this deeply personal life choice.”


Courts in California, New York, New Jersey, Tennessee, and Illinois have all made rulings consistent with the contractual approach to ART agreements. The trend is that these very personal decisions should be made by the parties involved – not the court.


Should ART Agreements Be Binding in Divorce?
In theory, honoring the parties’ ART agreements seems like a sensitive and practical approach to resolving such weighty emotional issues. But is simply having an “agreement” enough? What if the parties are not having serious discussions about the implications of their decisions because they are highly emotional or rushed because of medical concerns? What if the parties are filling out hundreds of pages of forms? What if the forms are not explicit and do not address fundamental issues like whether the Husband will be treated as the legal father of any resulting children in the event of a divorce?


It is unlikely that a layperson could truly comprehend the complex legal implications of everything they must sign when seeking IVF. Courts are trending toward the contractual approach, but so far, they have not delved deeper to discuss whether parties should meet certain requirements to create a valid agreement.


This is in stark contrast to laws surrounding gestational surrogacy contracts. Many states have adopted statutes obliging parties to meet a long list of requirements to have a valid surrogacy contract. For example, statutes require the parties to be represented by independent legal counsel, to notarize signatures, and for two witnesses to sign the agreement. The list of requirements can be lengthy and onerous.


Legislatures have reacted swiftly to enact these comprehensive gestational surrogacy laws after several high-profile cases received widespread media attention. Unfortunately, there has been no such widespread attention to the disposition of frozen embryos. The lack of guidance is all the more striking because IVF is so much more common than gestational surrogacy.


State Courts Must Weigh-In on What Constitutes a Valid ART Agreement
Legislatures and courts should treat the disposition of frozen embryos more like surrogacy agreements and put safeguards in place to protect the populace. Although this would place a greater burden on parties using IVF, it would also ensure that the most fundamental rights of the parties are protected: the right to be – or not to be – a parent. Parties should be advised of the consequences of their ART agreements regarding the disposition of embryos upon divorce and whether the Husband (or partner) would be the legal parent of any resulting children after divorce.


Bright-line laws could also limit litigation. For example, the Uniform Parentage Act (Uniform Law Commission 2017) suggests the following law: “Section 706(a). If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.” This Act only governs whether a spouse is considered a parent and does not dictate who may control embryos after a divorce. Nonetheless, such legislation provides much-needed guidance to couples considering IVF.


Until state legislatures actually change the law, if courts are to use the contractual approach to Assisted Reproductive Technology litigation, then they have a responsibility to look at parties’ so-called agreements more closely. Statutes are often a codification of case law. Therefore, State courts should start to weigh-in on what constitutes a valid agreement over frozen embryos rather than stopping their inquiry as soon as they see a signed form with a checked box. This would ensure parties meet the Kass court’s goal that parties have serious and lengthy discussions over this “deeply personal life choice.”



So You’re Getting Divorced: What to Expect and How to Proceed

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So You’re Getting Divorced: What to Expect and How to Proceed

By: Jennifer S. Tier / September 16, 2019



Can I stop the divorce?
If you are not the spouse who filed for divorce, you probably cannot stop the proceeding. If your spouse wants to get a divorce, he or she has a right to do so—no state will force a spouse to remain married.


If you are the spouse who filed for divorce, you can usually stop the process by withdrawing your petition for a divorce as long as your spouse has not filed his or her own petition for divorce.


Can one lawyer represent both of us?
No. Under every state’s rules of professional conduct, divorce lawyers cannot represent both parties in a divorce. A lawyer is your advocate, and he or she has a duty to represent you and your interests only. The ethics rules for lawyers prohibit them from representing clients with conflicting interests—which are especially common between divorcing spouses. Parties to a divorce have opposite interests (even if both of you want to resolve the case amicably). Divorcing spouses cannot “waive” the conflict of interests and engage the same lawyer. It is also important that your lawyer be your champion, and anything you say must remain confidential. This can only be true when you talk to your attorney alone and not with your spouse present.


How long will a divorce take?
How long a divorce takes depends on many different factors and legal requirements that vary by state. For example, states may have a residency requirement (the length of time one or both parties must be a resident of the state). Some states also have a separation requirement (an amount of time you and your spouse must be separated in order to qualify for a divorce) and/or waiting periods (a fixed amount of time between filing for divorce and scheduling a hearing or entering a final judgment). The amount of time couples must be separated prior to finalization of a divorce ranges from sixty days to five years.


The amount of time your divorce takes will also depend on your location (that is, how crowded the court system is); the complexity of the issues involved; whether or not you have children; and how complicated your assets are. Generally, however, if you and your spouse are able to reach agreements, your divorce will be completed quickly.


If you are in a state where you can contest the grounds, or reasons, for a divorce, your divorce process may take longer. Depending on the state, your spouse can either file for a no-fault divorce or on fault-based grounds. Other issues that delay resolution are marital property division and parenting issues.


Should I move out of the house?
You should move out immediately if your physical, mental, or emotional well-being is seriously endangered and you are unable to have your spouse removed from the house (that is, by obtaining a court order for exclusive possession of the house or an order of protection). However, if you have children and you move out before you have a visitation schedule in place, you will be jeopardizing your ability to see them regularly. Once you move out, moving back in will typically be harder. Prior to leaving, you should consider inventorying all the property and removing your personal property. An inventory can be a video on your cell phone. If you want to move out, it is important to have specific court orders detailing your rights, who pays household expenses, and a visitation schedule.


Can I read my spouse’s mail or email or tape our telephone conversations?
This is not recommended, and it is illegal in most situations. No individual is allowed to open anyone else’s mail—being married does not provide an exception to this law. Exceptions arise only when the mail is addressed jointly to you and your spouse or one party has a power of attorney or similar legal power. Similarly, hacking into your spouse’s email account is a violation of the Federal Wiretap Act. State rules vary regarding the taping of telephone conversations, and you should check to make sure you are not violating your state’s rules. However, under federal law, unless you obtain permission, you cannot tape conversations between you and your spouse or your spouse and others.


Can I change the locks on the house?
You may change the locks, but you may not be able to prevent your spouse from entering the house. Even if you change the locks, your spouse will still have the right to enter the house unless you have “exclusive possession” of the house—that is, unless you have a court order excluding your spouse from the house. The other way to prevent your spouse from entering the house is by obtaining an order of protection if your physical, mental, or emotional well-being is seriously endangered.


What about my prenup?
If your prenuptial agreement complies with the laws of your state, it should be validated by the court and the terms of the prenuptial agreement incorporated into your final divorce decree. A valid prenuptial agreement will typically comply with the following rules.


  • It must be a written agreement (not oral).
  • It must be signed by both parties prior to the wedding.
  • It must be signed voluntarily without pressure from one side. 4. Both parties must be given enough time to review and understand the agreement.
  • Each party must make a full and truthful disclosure of income, assets, and liabilities.
  • It must not be unconscionable (grossly unfair such that one side suffers severe financial hardship).
  • Each party should be represented by his or her own attorney, as the parties must each defend their own interests. As discussed in more detail above, one attorney can never represent both parties.


But please exercise caution: the rules on prenups vary greatly state by state.


Can I change the judge?
Every state court system handles requests to change judges differently. Many states will allow a change of judge so long as the request is made early in the proceeding. Once the proceedings have begun and the judge has heard issues relating to your specific case, it becomes much more difficult to change the judge. If the request is not made early in the proceedings, you will need to give a clear reason why the judge would not be able to give you a fair trial. Some of the most common reasons are:

  • The judge has a financial interest in your case;
  • The judge is related to the one of the parties; or
  • The judge represented one of the parties previously when practicing as a lawyer.


If one of these reasons applies, the judge can also voluntarily remove him- or herself from the case in a process known as “recusal.”


What should I wear to court?
You should look professional. It is important you make a good impression and put your best foot forward. You are not required to wear a suit, but you should treat a court appear- ance as you would a job interview. You will be treated more seriously and with more respect if you are dressed appropri- ately for the environment.


What if I don’t show up to court?
If you have a lawyer representing you, the lawyer will tell you when it is necessary for you to personally appear at court. If you are representing yourself, it is essential that you show up for all court dates. Appearing in court will ensure that you are not held in default for failing to appear—which would mean that you could automatically lose your case. You would not be able to participate in the proceedings, and orders could be entered without your consent or knowledge. If you are representing yourself, you will also be the only person advocating on your behalf. It is essential that the judge hear your side of the issues and arguments. Please note that if you choose to represent yourself, the court will usually hold you to the same standards as an attorney for the practice of law.


Will my spouse be required to return to work?
Whether spouses are required to work will depend on:

  • How long they have been unemployed;
  • Their educational background;
  • Their work history; and
  • Their job training.


If your spouse has been unemployed during your marriage and is unemployed when the divorce proceeding is filed, he or she will most likely not be required to work while the divorce case is pending. Generally, state laws preserve the financial status quo during a divorce proceeding. If your spouse is ultimately awarded “rehabilitative alimony” (also referred to as “limited” or “short-term” support), there is an expectation he or she will eventually work. The purpose of this type of alimony is to provide your spouse with enough support to enable a return to school or development of job skills or training that will result in a job and self-sufficiency. If your spouse is older and if you have a long-term marriage, your spouse may be past a point where return to work will be expected.


What happens to credit card debt in a divorce?
Responsibility for credit card debt will depend on which state you reside in, whether it is joint credit card debt, and if the debt was incurred before or after the divorce proceed- ing was filed. In some states, credit card debt incurred during the marriage is the joint responsibility of both parties so long as both parties are co-signers on the credit card. In other states, both spouses are responsible for all credit cards even if only one spouse is a signer. However, even if your spouse is responsible for your credit card debt in your divorce decree, credit card companies are not bound by your agreement. It is important that you take additional steps to protect yourself, as the credit card companies can still pursue you if your spouse fails to pay. Additional protections can include putting indemnification language into your decree or ensuring there will be sources of funds to pay off the credit card debt completely.


What about wedding gifts?
Wedding gifts are unique in that they are gifts (which normally are considered separate property belonging to the individual who received them), but, by their very name, wedding gifts are intended for both spouses. Most judges will take a commonsense approach to wedding gifts and divide them in what they consider to be a fair way. In determining how to award wedding gifts between spouses, the judge may consider who gave the gift (which spouse’s family or friend), whether the gift has sentimental value for one party (for example, a family heirloom), and the gift’s original value.


Can I make a spouse sign a joint tax return?
A court will not order an unwilling spouse to sign and file a joint tax return. If failing to file a joint tax return results in additional taxes or liabilities, the judge may require the spouse who refused to sign the joint return to be solely responsible for the additional taxes. This is more likely if the judge believes the refusal was unreasonable. However, if a spouse has doubts about the accuracy of the information contained on a joint tax return, that spouse has every right not to sign and to prepare his or her own tax return.


Should I hire a private detective?
A private detective can be useful in many different circumstances when getting divorced. A private detective may or may not be able to confirm your suspicions about your spouse’s behavior with a significant other. A private detective can provide you with actual evidence that can be used in court. A private detective, however, will not be able to prove how much money your spouse is spending. You will need to do this by looking through your spouse’s financial records and potentially hiring a financial expert to assist you. A private detective, however, may also help you find hidden assets or income. The detective will know what records to look for and how to access the information, including information related to off-shore bank accounts, and how to look for hidden income or employment.


Finally, a private detective can help provide crucial evidence in custody proceedings. For example, a private detective can help determine how attentive your spouse is to your children’s needs and safety while the children are in his or her care. Private detectives are usually very expensive, and you should speak with your attorney about whether hiring one is necessary or worth the time and effort.




So You’re Getting Divorced: What to Expect and How to Proceed; GP Solo eReport (September 2019)
©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Domestic Violence Harms the Child! The Seventh Circuit Puts Children First in International Custody Disputes

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Domestic Violence Harms the Child! The Seventh Circuit Puts Children First in International Custody Disputes

By: Jennifer S. Tier / 2007


Family Law—International Child Abductions


Abstract: What happens when a United States citizen parent takes her child from a foreign country, where they have been living, to the United States in order to escape domestic violence? Traditionally, under the Hague Convention, American courts would implement the "remedy of return," thereby returning the child to the foreign country, where the abuser resides. While the Hague Convention provides a defense to this remedy if there is a "grave risk of harm" to the child, some circuit courts have declined to extend this defense to cases of domestic violence or have nevertheless implemented the remedy of return. The Seventh Circuit, however, has set an example for other circuits by expanding the scope of the "grave risk of harm" defense under the Hague Convention to include cases of domestic violence, declining to return children to the country where the abuser resides. This Comment will provide background on the Hague Convention and an overview on American jurisprudence concerning application of the Convention in cases of domestic violence. It will then conclude that the Seventh Circuit, in Van de Sande v. Van de Sande, properly expanded the scope of the grave risk of harm defense in cases of domestic violence.