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Md. court sets framework for resolving frozen-embryo disputes

A divorcing couple’s fight over the fate of their frozen pre-embryo will return to trial after Maryland’s second-highest court ruled Thursday that a judge’s decision to await an agreement between the warring spouses was premature because the wife wants to be implanted with the potential life and the husband wants it destroyed or donated.

“In light of the unique, countervailing interests inherent in cryogenically preserved pre-embryos, we conclude that the frozen pre-embryo cannot be classified simply as an interest in property because it concerns interests of far broader dimension,” Judge Andrea M. Leahy wrote for the Court of Special Appeals. “We agree with those courts that recognize the special respect due cryopreserved pre-embryos in light of their potential for human life as well as the fundamental and coextensive rights of their progenitors to decide whether to bear or beget a child.”

In sending the case back for trial, the Court of Special Appeals set guidelines for judges to follow regarding the disposition of frozen pre-embryos when the divorcing couple cannot agree — an issue unresolved by Maryland lawmakers and a matter of first impression for the state’s appellate courts.

In its reported decision, the Court of Special Appeals said judges must first determine, if possible, whether the couple had ever expressed their intentions for the pre-embryo’s fate in the event of divorce.

If intent cannot be established, the trial court must balance the competing interests of the divorcing spouses with regard to the frozen pre-embryo, the Court of Special Appeals stated in is 3-0 decision.

“Consistent with the approaches adopted by other states that have addressed the issue, we hold that if, upon dissolution of their marriage or partnership, the parties cannot reach agreement about what to do with any remaining pre-embryos that were cryopreserved during their relationship, our courts should first look to the preference of the progenitors in any prior agreement expressing their intent,” Leahy wrote.

“In the absence of an express agreement, courts should seek to balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to  preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF (in vitro fertilization), which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant to the parties’ unique situation.”

Judges, however, may not consider any economic disparity between the parties, their number of children or whether adoption is a reasonable alternative for a party seeking to become a genetic parent, the Court of Special Appeals said.

The court also cautioned judges against relying on the IVF facility’s “third-party” contract with the couple as evidence of the would-be parents’ intent if their relationship dissolves.

“Given the pervasiveness of third-party informed consent agreements, we emphasize that the progenitors – not fertility centers – must expressly and affirmatively designate their own intent,” Leahy wrote.

“While we do not condemn all form contracts to inconsequence in this context, boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as an express agreement for this purpose,” Leahy added. “The court should incorporate such form contracts within the balancing factors set out above, to be considered alongside other evidence.”

The Court of Special Appeals issued its guidance in remanding to the Baltimore County Circuit Court the frozen pre-embryo custody fight between Jocelyn and Joshua Pope, a divorcing couple who were unable to conceive a child and turned to IVF.

Jocelyn Pope’s attorneys at Levin & Gann PA in Towson said they are “extremely pleased” that the Court of Special Appeals has given judges a “framework” for resolving family-law disputes over embryos, which cannot be divided between a divorcing couple like a bank account or converted into divisible funds, such as the sale of their home.

“It is a form of marital property but not in the traditional sense,” attorney Debra B. Cruz said. “Embryos or pre-embryos do not have a property value.”

Picking up on that theme, Cruz’s co-counsel Shannon L. Boisseau added, “The property is of a special kind. You cannot simply divide it.”

Joshua Pope’s attorneys at Cordell & Cordell LLP in Baltimore also praised the court for providing much needed guidance in the resolution of divorcing couples’ disputes over the disposition of frozen pre-embryos.

“It’s very exciting,” said attorney Maureen T. Beery. “We now have precedent on the matter.”

Her co-counsel Kristine J. Rea said that “we’re going to see a lot more of these cases in the future.”

As their marriage was dissolving, the Popes reached a settlement on property division but could not come to an agreement regarding the frozen pre-embryo, which Jocelyn wants implanted and Joshua wants destroyed or donated, according to the court’s opinion.

On Nov. 20, 2019, Baltimore County Circuit Judge Michael J. Finifter ordered the frozen pre-embryo to be jointly awarded to the divorcing spouses but prohibited its “transfer, release, or use … without the signed authorization of both parties.”

Jocelyn Pope sought review by the Court of Special Appeals.

Leahy was joined in the opinion by Judges Christopher B. Kehoe and Kevin F. Arthur.

The Court of Special Appeals issued its decision in Jocelyn P. v. Joshua P., No. 2125, September Term 2019.

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