The issue was easily framed: “As a matter of first impression in Maryland, we examine how to determine the rights of parties, upon dissolution of their marriage or partnership, in a pre-embryo that they jointly created and cryopreserved.” Jocelyn P. v. Joshua P. (No. 2125, Sept. Term 2019) (Apr. 29, 2021), Slip Op. at 1. Its resolution, however, required the Court of Special Appeals to wade into two subjects of intense national debate: (1) the legal status of cryopreserved pre-embryos; and (2) what should happen when the parties that created the pre-embryos do not agree on what to do with them. The Court concluded that because pre-embryos are neither “person” nor “property,” they do not fit into any existing statutory or common law framework to resolve custody or property disputes in Maryland. After reviewing approaches used by other states, the Court adopted a two-step approach to disposition that will require a judge to look first for a prior agreement between the parties. In the absence of such an agreement, the judge must then employ a balancing test to weigh the parties’ competing interests based on a set of factors announced by the Court.
Unable to conceive after several years of marriage, Jocelyn and Joshua turned to in vitro fertilization (IVF). Three of Jocelyn’s eggs were fertilized with Joshua’s sperm. One was implanted and lost to miscarriage. A second effort was successful and resulted in the birth of the couple’s only child. A third pre-embryo was frozen and in storage when the parties decided to divorce. Id. at 5–9.
They were able to settle all issues between them except for the disposition of the remaining pre-embryo. Jocelyn wanted to use it to have another child. Joshua did not want to father another child with his soon to be ex-wife; he wanted the zygote destroyed or donated to a family that could not produce an embryo of their own. Id. at 14–16.
With no Maryland law to guide it, the trial court looked at the three common law approaches used elsewhere: (1) the contractual approach; (2) the contemporaneous mutual consent approach; and (3) the balancing approach. The trial judge determined that regardless of the approach employed, “there is no outcome that permits implantation of the embryo against [Joshua’s] wishes. . . . Therefore, the frozen embryo should be awarded jointly to the couple, maintaining the status quo . . . until mutual consent is reached.” Id. at 19. Jocelyn appealed.
The appellate court’s first order of business was to define the legal status of a frozen pre-embryo. Id. at 23. While it “has certain characteristics consistent with the broad definition of ‘marital property’ under Maryland law, [w]e must also recognize . . . the parties’ unique and personal interests in the cryopreserved pre-embryo and that Jocelyn believes, as do others, that ‘the embryo is human and capable of developing into an adult.’” Id. at 23–24. Joshua, on the other hand, has a constitutionally protected privacy right “to avoid procreation.” Id. at 25 (emphasis in original). The Court thus concluded: “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.’” Id. at 27, quoting Eisenstadt v. Baird, 405 U.S. 438, 452 (1972).
The Court then turned its attention to a review of the approaches used in other jurisdictions to resolve these disputes. Joshua urged the adoption of the contractual approach and argued that the IVF contract the couple signed at the fertility clinic required mutual consent of the parties before disposition. Jocelyn argued in favor of both the contractual and balancing-of-interests approaches, with the latter coming into play only if there was no clear agreement between the parties as to disposition in the first place. The Court ultimately agreed with Jocelyn, both as to the use of a blended approach and her assertion that there was no prior written agreement in this instance.
No one advocated in favor of the contemporaneous mutual consent approach, “which allows a party to change his or her mind about disposition up to the point of use or destruction of any stored embryo, regardless of any prior agreement.” Id. at 36 (internal quotations and citations omitted). “Proponents of the mutual-consent approach suggest, with respect to ‘decisions about intensely emotional matters . . .’ it may ‘be impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.’” Id., quoting In re Marriage of Witten, 672 N.W.2d 768, 777 (Iowa 2003). The Court of Special Appeals rejected this approach because “it creates a de facto veto over the other party . . . [and] could give each progenitor a powerful bargaining chip at a time when individuals might very well be tempted to punish their soon-to-be ex-spouses.” Id. at 37–38 (internal quotations and citations omitted). The Court characterized this approach as “‘totally unrealistic’ because the parties are in court precisely because they cannot come to mutual agreement about what to do with the remaining frozen pre-embryo(s).” Id. at 50 (citation omitted).
Under the contractual approach, the court “look[s] to any prior agreements between the parties regarding the disposition of cryopreserved pre-embryos.” Id. at 28 (citations omitted). “Proponents of the contractual approach contend that it allows the parties—not the state and not the courts—to make this deeply personal choice” and promotes prior agreement to “minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.” Id. at 33–34 (internal quotations and citations omitted). The Court of Special Appeals approved of the contractual approach, with a caveat necessitated by “the proliferation of form contracts in this sphere.” Id. at 35. The facts under review helped make this point.
Joshua relied on the couples’ contract with the fertility clinic that did the harvesting and fertilization to argue that the couple had previously agreed that disposition of the pre-embryo required mutual agreement. Its boilerplate provided:
 It is the policy of [the clinic] that embryos produced by the joining of eggs and sperm are subject to disposition in a manner mutually agreed upon by the partners. . . .  In the event of a divorce if one of the partners produced the gametes (sperm or eggs), then the producer shall have the sole decision-making authority over the disposition of the embryos.
Id. at 7.
Everyone agreed that clause —the only reference to divorce—was inapplicable because gametes from both of the parties were used. The trial court agreed with Joshua that clause  expressed the parties’ intent to require mutual agreement prior to disposition.
The appellate court disagreed, noting that these provisions were ambiguous and part of an adhesion contract drafted by the fertility clinic. The form contract, therefore, did not memorialize an actual meeting of the minds on the part of Jocelyn and Joshua. The Court explained:
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. . . . Boilerplate language in a third-party form contract may not qualify as an express agreement between progenitors regarding who should have custody of their jointly created pre-embryo in the event of the dissolution of their relationship.
Id. at 48 (citations omitted).
Finding no written agreement, the Court remanded the case to determine whether there was a prior oral agreement between the parties. Id. at 58. Anticipating its absence, the Court needed a back-up plan. It went on to announce that when there is no prior contractual agreement, the trial judge must resort to a balancing-of-interests analysis.
Under the balancing approach, the court balances “the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by differing resolutions[,] including in particular the ‘two aspects of procreational autonomy—the right to procreate and the right to avoid procreation.’” Id. at 40, quoting Davis v. Davis, 842 S.W. 2d 588, 597 (Tenn. 1992) (internal citations omitted). Summarizing nearly 60 pages of discussion that followed, the Court announced:
[W]e 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. 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, 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.
Id. at 3 (citations omitted).
In addition to listing the factors to be balanced, the Court mentioned several that should not enter the equation, such as financial differences among the parties, the number of existing children, or the presence of alternatives (such as adoption) available to the party seeking to become a genetic parent. Id. at 4.
The Court took time to analyze many foreign cases that illustrate how the factors should be applied under the balancing test, perhaps anticipating that this is how most of these cases will be resolved. The primacy of the contractual approach, however, is expressly designed to avoid this and places a premium on pre-fertilization planning. Attorneys who advise fertility clinics and their patients should be sure to put this difficult subject on their list of discussion items for patients and clients considering IVF.