Jocelyn P. v. Joshua P.

Jocelyn P. v. Joshua P. No. 2125, Sept. Term, 2019 Opinion by Leahy, J. Family Law > Dissolution of Marriage or Partnership > Interests in Pre-embryos Jocelyn and Joshua’s “competing interests in the disputed pre-embryo[] derive from constitutional rights in the realm of reproductive choice.” In re Marriage of Rooks, 429 P.3d 579, 586 (Colo. 2018). At its core, reproductive autonomy “is composed of two rights of equal significance—the right to procreate and the right to avoid procreation.” Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992). Reproductive Autonomy > Pre-embryos > Legal Status 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. Reproductive Autonomy > Pre-embryos > Legal Status 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.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

Family Law > Dissolution of Marriage or Partnership > Interests in Pre-embryos > Blended Contractual/Balancing of Interests Approach We hold that disputes that arise during dissolution of the parties’ marriage or partnership involving the custody of cryogenically preserved pre-embryos should be resolved utilizing a blended contractual/balancing-of-interests approach, first enunciated in Davis v. Davis, 842 S.W.2d 588 (1992), further refined through the non-exhaustive and inappropriate factors delineated in In re Marriage of Rooks, 429 P.3d 579 (2018) and the special considerations concerning third-party form contracts identified in this opinion. Family Law > Dissolution of Marriage or Partnership > Interests in Pre-embryos > Framework for Dispute Resolution > Contractual Analysis > Form Contracts 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. See Szafranski v. Dunston (Szafranski II), 34 N.E.3d 1132 , 1157 (Ill. App. Ct. 2015) (analyzing cases where “courts have found a couple’s dispositional intent to have been expressed in an IVF-related agreement”).

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 embryo in the event of the dissolution of their relationship. Circuit Court for Baltimore County Case No. 03-C-17-007803 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2125 September Term, 2019 ______________________________________ JOCELYN P. v. JOSHUA P. ______________________________________ Kehoe, Arthur, Leahy, JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: April 29, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-04-29 09:38-04:00 Suzanne C. Johnson, Clerk For nearly half a century,1 in vitro fertilization (“IVF”) has offered couples who are unable to conceive naturally the ability to have biological children. Still, the law governing frozen pre-embryos created through this process remains unsettled.2 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. and Joshua P. signed and initialed a form “Agreement and Informed Consent for In Vitro Fertilization, Intracytoplasmic Sperm Injection, Assisted Hatching and Embryo Freezing” (“IVF Contract”) with the Fertility Center of Maryland (“FCM”) after Jocelyn was diagnosed with primary infertility and the couple was unable to have children through other means.

Through the IVF process, Joshua and Jocelyn produced three pre-embryos. The first pre-embryo was lost due to miscarriage; the second was successfully implanted, resulting in the birth of a child in 2016; and the third and final pre- embryo was kept frozen at FCM. 1 On July 25, 1978, the first child conceived through IVF, Louise Joy Brown, was born in Manchester, England to Lesley and John Brown. See generally Lesley Brown & John Brown, Our Miracle Called Louise: A Parent’s Story (1979). 2 Carissa Pryor, What to Expect When Contracting for Embryos, 62 Ariz. L. Rev. 1095 , 1096-97 (2020) (“Although case law and legislation have become relatively settled when it comes to grappling with other reproductive aids such as sperm and egg donation, adoption, and surrogacy, they are only just beginning to develop when it comes to embryo disputes with many, if not most, jurisdictions lacking legislation or binding jurisprudence.”).

After the parties separated, they sought dissolution of the marriage and reached a settlement on all matters, including custody of their child and property disposition, with one exception. They could not agree on what to do with the remaining cryopreserved pre- embryo. Jocelyn wanted the pre-embryo for implantation, whereas Joshua wanted the pre- embryo either destroyed or donated. After an evidentiary hearing and oral argument, on November 20, 2019, the Circuit Court for Baltimore County ordered that the pre-embryo be jointly awarded to the parties “such that no transfer, release, or use of the frozen embryo[3] shall occur without the signed authorization of both parties.” Jocelyn appealed and presents four questions for our review, which we have consolidated and recast as follows: 1.

Should the circuit court apply a balancing-of-interests approach, adopted by a majority of states, in the absence of an express agreement between the progenitors about what to do with their jointly created frozen pre- embryos? 3 The term “embryo” is used interchangeably by courts and legal writers with multiple other terms, including “pre-embryo,” “pre-zygote,” and “zygote.” See Laura S. Langley, J.D. & Joseph W. Blackston, M.D., J.D., Sperm, Egg, and A Petri Dish Unveiling the Underlying Property Issues Surrounding Cryopreserved Embryos, 27 J. Legal Med. 167 , 170 (2006). The term “embryo” was used in the IVF Contract and employed by the trial court and the parties throughout the underlying proceedings. We note, however, that it is more accurate to refer to the frozen embryo in this case as a “pre-embryo” because the term refers to “that period of development from the end of the process of fertilization until the appearance of a single primitive streak,” the precursor of the nervous system. Howard W. Jones, Jr. & Charlotte Schrader, And Just What Is a Pre-Embryo?, 52 Fertility & Sterility 189, 190 (1989); see also In re Marriage of Rooks, 429 P.3d 579, 582 (Colo. 2018) (‘“Pre-embryo’ is a medically accurate term for a zygote or fertilized egg that has not been implanted in a uterus. . . .

An embryo proper develops only after implantation.” (citation omitted)). Barring direct quotation, we will use the term “pre-embryo.” 2 2. Did the circuit court err in determining that the IVF Contract was unambiguous and controlled the disposition of the remaining frozen pre- embryo? 3. Did the circuit court abuse its discretion under its alternative determination under the balancing-of-interests test that Joshua’s interest to avoid procreation outweighed Jocelyn’s interest in procreation by implanting the remaining frozen pre-embryo?

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.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 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. Davis v. Davis, 842 S.W.2d 588, 642 (Tenn. 1992). 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.

In re Marriage of Rooks, 429 P.3d 579 , 593-94 3 (Colo. 2018). We further agree with our sister states that hold it is impermissible for a court to consider financial and economic distinctions between the parties; the number of existing children; or “reasonable alternatives,” such as adoption, available to the party seeking to become a genetic parent. Id. When analyzing a prior agreement, courts should take particular care to ensure that it manifests the progenitors’ actual preferences.

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. 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. The court should incorporate such form contracts within the balancing factors set out above, to be considered alongside other evidence. We conclude that such a blended contractual/balancing-of-interests approach is consistent with Maryland law.

For the reasons expressed in this opinion, we reject the mutual contemporaneous consent approach employed by a minority of states, and upon which the circuit court based its decision in this case. We further hold that the circuit court erred in its determination that the IVF Contract evinces Jocelyn and Joshua’s preference regarding what to do with their cryopreserved pre-embryo in the event of their divorce. Accordingly, we vacate the judgment of the circuit court and remand for further proceedings. We instruct the court to consider whether, based on the testimony presented, Jocelyn and Joshua had an express oral agreement that they would “give the embryo the opportunity for life” and whether that 4 agreement was intended to survive the dissolution of their marriage.

If the court determines that there was no oral or written agreement that expressly delineated the parties’ intentions, then the court must balance the parties’ interests under the framework set out above and further described in this opinion. BACKGROUND The parties were in their twenties when they married in July 2010. Jocelyn was a board-certified nurse, and Joshua was a paramedic. During the first two years of their marriage, they attempted to conceive a child naturally, without success.

In August of 2012, they consulted with Shady Grove Fertility Reproductive Science Center (“Shady Grove”), and after extensive infertility testing, Jocelyn was diagnosed with (1) “[p]rimary infertility” and (2) “[p]ossible unexplained infertility.” Jocelyn and Joshua decided to pursue intrauterine insemination (“IUI”) at Shady Grove in the fall of 2013.4 Jocelyn had three IUI procedures on September 30, 2013, November 23, 2013, and December 24, 2013. The IUI procedures were accompanied by numerous doctor visits, blood draws and tests, ultrasounds, and shots of hormones to increase egg production and prompt ovulation. The three IUI procedures were unsuccessful. After another year of unsuccessful attempts to conceive without assistance, on January 21, 2015, Jocelyn and Joshua consulted the Fertility Center of Maryland (“FCM”) 4 IUI is a fertility treatment that involves the “placement of sperm that have been washed of seminal fluid directly into the uterus to bypass the cervix.” Stedman’s Medical Dictionary Online, intrauterine insemination (2021). 5 to explore additional options to conceive a child.

After further examination, FCM diagnosed Jocelyn with “[p]rimary infertility.” She underwent a hysteroscopy, dilation, and curettage procedure to increase her chance of pregnancy. Jocelyn then underwent four additional IUI procedures between April and June, 2015. Unfortunately, these procedures also were unsuccessful. After the last unsuccessful IUI, with consultation of FCM, Jocelyn and Joshua elected to attempt to conceive through IVF.5 The IVF Contract The parties executed the IVF Contract on September 10, 2015.

The IVF Contract stated that the “main goal of IVF is to allow a patient the opportunity to become pregnant using her own eggs and sperm from her partner or from a donor.” It described the “IVF process from start to finish,”6 including “the risks that th[e] treatment might pose to you and your offspring.” For example, risks associated with the initial removal of the eggs from the ovary include “infection” and “bleeding,” which, if “major” will “frequently require surgical repair and possibly loss of the ovary.” The IVF Contract also warned that 5 IVF is “a process whereby (usually multiple) ova are placed in a medium to which sperm are added for fertilization, the zygote thus produced then being introduced into the uterus with the objective of full-term development.” Stedman’s Medical Dictionary Online, in vitro fertilization (2021). 6 The components covered in the IVF Contract included the “Technique of IVF”: a. Core elements and their risk; b. Transvaginal Oocyte Retrieval; c. In Vitro Fertilization and Embryo Culture; d.

Embryo Transfer; and e. Hormonal Support of Uterine Lining. 6 “it is possible to damage other intra-abdominal organs during the egg retrieval. Previous reports in the medical literature have noted damage to the bowel, appendix, bladder, ureters, and ovary.” Despite the multiple medications involved in the treatment, the IVF Contract warned that the egg-retrieval process may be unsuccessful: Even with pre-treatment attempts to assess response, and even more so with abnormal pre-treatment evaluations of ovarian reserve, the stimulation may result in very few follicles developing. The end result may be few or no eggs obtained at egg retrieval, switching to intrauterine inseminations or even cancellation of the treatment cycle prior to egg retrieval.

Section A.2.c. of the IVF Contract addressed cryopreservation. The subsection, offset in capital letters and titled “OWNERSHIP AND DISPOSITION OF FROZEN EMBRYOS,” stated, in pertinent part: It is the policy of FCM that embryos produced by the joining of eggs and sperm are subject to disposition in a manner mutually agreed upon by the partners. Where donor eggs or sperm are being used, the embryos are subject to disposition in a manner mutually agreed upon by the couple receiving IVF services at the site, except in the cases of divorce. 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. ***** I/we (The Couple) understand and agree that if any dispute arises between the two of us regarding disposition of the embryos, FCM is authorized, in its sole discretion, to refrain from taking any action unless and until otherwise directed by a final judgment of a court of competent jurisdiction or by another agreement signed by both partners.

We agree to be jointly and individually responsible for the storage fees. FCM is entitled to rely on future written agreements provided by us, and shall have no obligation to inquire as to their validity or enforceability. I/we understand and agree the FCM, in its sole discretion, may institute legal proceedings of any kind regarding the disposition of the 7 embryos. If and in that event, this [IVF Contract] shall be governed by the laws of the State of Maryland.

(Bold and italic emphasis in original; underscore emphasis added). The parties were allowed to elect one of two alternatives “[i]n the event of death or mental incapacity of one of us.” Jocelyn and Joshua both entered their initials indicating their desire that the frozen pre-embryo would “[b]ecome the property of the (other) surviving partner who will have full authority regarding disposition which may include storage, disposal or use to establish a pregnancy.” Finally, the IVF Contract specified the storage period for pre-embryos: In the event that embryo(s) have been in storage for five (5) years, it is the policy of FCM that the disposition of the frozen embryos should occur at that time. While the couple may elect to undertake disposition of the embryo(s) prior to that time (which may include transferring them to the uterus of the female to attempt pregnancy, transfer to another facility, disposal or donation to another couple). The Couple agrees to make a determination before the expiration of the five (5) years of storage plan.

The Couple understands that FCM will provide them with a thirty (30) days advance notice that the five (5) years has elapsed[.] If I/we do not respond or cannot be contacted, FCM is hereby authorized to discard any remaining frozen embryos according to laboratory procedure. (Emphasis in original). Jocelyn underwent an oocyte retrieval to remove eggs from her ovaries on September 16, 2015. Fourteen oocytes were retrieved.

Of these fourteen, eight were fertilized, and three developed into pre-embryos. The first pre-embryo implanted in Jocelyn resulted in a miscarriage in October 2015. The second pre-embryo was successfully implanted in January of 2016, and the parties’ only child was born in September of 2016. The third pre-embryo—the subject of this 8 appeal—was kept frozen at FCM until it was transferred to Virginia on June 1, 2020, as explained further below, under an “Agreement for Receipt, Storage and Disposition of Frozen Embryos,” (“Storage Agreement”) between Jocelyn, Joshua and Fairfax Cryobank, Inc. (“Cryobank”).

Deterioration of the Parties’ Relationship and Divorce Proceedings Joshua and Jocelyn began to experience marital difficulties that culminated in an argument in July 2017 that required intervention by the police. Jocelyn left the marital home and, a week later, sought and obtained a protective order against Joshua in the District Court of Baltimore County. The protective order was later reversed following a de novo proceeding in the circuit court. On August 10, 2017, Jocelyn filed a complaint for limited divorce, custody, and other relief.

Joshua filed an answer and counter-complaint for limited divorce, custody, and other relief on September 6, 2017. Both parties subsequently filed amended complaints seeking an absolute divorce and requesting the court determine the issue of marital property. On May 29, 2019, Joshua, Jocelyn, and their respective counsel appeared in court and entered a settlement into the record. The parties had reached a settlement on all issues, except what to do with the third pre-embryo that was cryopreserved.

Jocelyn and Joshua agreed to submit the issue to the circuit court. Pre-Trial Memoranda On July 24, 2019, Jocelyn filed a trial memorandum and notice of intent to rely on foreign law concerning the disposition of the remaining cryopreserved pre-embryo. She 9 submitted that the circuit court “must balance the interests of the parties and ultimately grant [Jocelyn] the sole use of the remaining embryo.” Because the “ownership of frozen embryos is a matter of first impression in Maryland,” Jocelyn averred that the court “must look to the law of other jurisdictions for guidance.” She identified the three approaches utilized by courts in divorce cases to resolve disputes over frozen pre-embryos: (1) contractual; (2) balancing-of-interests; and (3) contemporaneous mutual consent. Pursuant to the contract/balancing approach, Jocelyn summarized that “courts will first look to the parties’ contract, if any[,]” and then, if the contract does not resolve the dispute, “balance the interests of each party to determine a fair and equitable disposition.” First, she asserted that the IVF Contract “does not fully resolve the dispute because it does not contemplate disposition of the fertilized embryo in the event of divorce, except in the case of donor sperm or eggs, not applicable here.”7 Consequently, Jocelyn asserted that the court should “balance the interests of each party to determine a fair and equitable disposition.” Relying on Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Reber v. Reiss, 42 A.3d 1131 (Pa.

Sup. Ct. 2012); and In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018), among other cases, she averred that her interest in procreation outweighed Joshua’s interest against procreation because “the remaining embryo is reasonably believed to be [her] last opportunity to bear a child.” Specifically, Jocelyn asserted that she devoted and invested two years of her life enduring the painful and invasive IUI and IVF procedures to ensure that she could achieve pregnancy with the result that she was only able to achieve a total of three viable embryos. The 7 The IVF Contract provides: “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.” 10 likelihood that [Jocelyn], who is almost 39 and assessed to be infertile, could reasonably be expected to achieve pregnancy by some other means if the current embryo is destroyed, is not reasonable. Accordingly, Jocelyn argued that application of the balancing test would result in transfer of the frozen pre-embryo to her.

Jocelyn contended that the mutual consent approach, adopted by the Supreme Court of Iowa in In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003), “is inconsistent with Maryland law.” Under this approach, pre-embryos are “stored until the parties reach an agreement, with the party opposing destruction to be responsible for paying storage fees.” Jocelyn argued that this approach “essentially creates a right of rescission after a contract has been made. Such approach is diametrically opposed to Maryland’s black-letter law on rescission, namely, that a party to a contract cannot back out of a ‘bad deal’ based on changed conditions[.]” In Joshua’s hearing memorandum, he stated that he sought “ownership of the frozen embryo in order to have it destroyed.” He then reviewed the three approaches performed by various courts. First, Joshua averred that “in this case, the contractual approach is not entirely helpful because the contract entered into by the parties with [FCM] specifically states that they are to reach a mutual agreement as to the disposition of the remaining embryo.” Second, Joshua agreed that “in cases where parties may not have a clear and/or enforceable agreement regarding disposition of embryos, then the [c]ourt may balance one party’s right to procreate versus the objecting party’s right not to procreate.” Relying on Davis v. Davis, 842 S.W.2d 588, 603 (Tenn. 1992), he asserted that “[o]rdinarily, the party 11 wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question.” Joshua contended that, because Jocelyn already “attained parenthood,” this approach weighed in his favor. Third, Joshua reviewed the contemporaneous mutual consent approach established in A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000) and In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).

He asserted that, under this approach, courts view “decisions about the disposition of frozen embryos belong[ing] to the couple that created the embryo with each partner entitled to an equal say in how the embryos should be disposed.” Witten, 672 N.W.2d at 777 . Evidentiary Hearing The court held an evidentiary hearing to address the parties’ dispute over the remaining cryopreserved pre-embryo on July 29, 2019. Jocelyn’s counsel offered a brief summation of the procedures undertaken by the parties at FCM and Shady Grove, and the significant time commitment required from Jocelyn to undertake IVF. Counsel for Joshua stipulated to this factual background.

Jocelyn testified that after two years without success conceiving naturally, she underwent three IUI procedures at Shady Grove. These IUI procedures caused “internal gut wrenching pain. Just like – like you got kicked in the gut really hard but from the inside” and “the hormones were just awful to go through.” She related that the failure to conceive was “absolutely devastating.” After these three procedures, she “decided to take a break[.]” 12 Based on her diagnosis at FCM and Shady Grove, Jocelyn understood that she would be unable to conceive a child without assisted reproduction. So, in 2015, Jocelyn underwent four additional IUI procedures with FCM.

For each IUI procedure, she expended considerable time at FCM, sometimes visiting the “doctor’s office three times a day.” After seven unsuccessful IUI procedures, Joshua and Jocelyn considered IVF. Jocelyn explained that she was “hesitant to go through with the IVF” because she “was raised in a very religious family” and “believe[d] life begins at conception.” Specifically, she explained that she: just wanted to be absolutely sure that [FCM] let every single one of th[e] embryos grow and, you know, reproduce cells until they no longer did and then they were to discard them. [FCM’s head embryologist] assured [Jocelyn] that is exactly how it happens. They don’t pick and choose, say, hey, this one is good, this one is not, let’s trash it. Because I think that it is God’s decision whether the embryos survive or not.

It shouldn’t be somebody else’s decision. So I finally decided okay, I’m emotionally and religiously, spiritually prepared to go through with the IVF. The parties then had a meeting on September 10, 2015, at FCM for “probably . . . over an hour going through the whole [IVF Contract], risks, procedures” and initialed each page of the IVF Contract and signed it. About a week later, Jocelyn was put under anesthesia and underwent an oocyte retrieval—14 eggs were removed.

Eight eggs became fertilized, and three developed into pre-embryos. The first pre-embryo was implanted a few days later. At a checkup a week or two later, Jocelyn found out that she was pregnant. Unfortunately, she miscarried in 13 October of 2015.8 In response to a question from counsel concerning whether the parties would “try again after the miscarriage[,]” Jocelyn testified that the parties had discussed “at length beforehand . . . before we went through this procedure, that we agreed that every single embryo would be used because we create a life and it was our responsibility to give that embryo the opportunity of life.” The parties then implanted the second pre-embryo, which resulted in the birth of their only child.

In describing the fertility process, Jocelyn said it was “awful.” Her “hair fell out” and became “extremely thin.” She gained thirty pounds and “had awful gout pain in [her] toe.” She had “hundreds” of appointments. According to Jocelyn, the sheer number of appointments required her to work part-time “because there was no way that [she] could have worked full-time. . . . [She] couldn’t keep [her] job.” Jocelyn requested that the court grant the pre-embryo to her because “[t]o [her]. . . [t]here is no difference with that child being in a lab and being five days old and being in [her] body and being five days out.” While Jocelyn acknowledged that she could “potentially” go through IVF again, she clarified: [F]rom a religious standpoint[,] I don’t want to go through IVF again. I would then be creating more life with potentially not enough time to use the embryos that I created because I’m just older. So there is no guarantee that it would work again.

And I don’t want to go through that again. It was awful. 8 After Jocelyn recounted these facts, the court inquired whether the eggs that had not been fertilized could have been frozen. Jocelyn explained that she was not given that option. 14 After Jocelyn rested her case, she was called as the first witness in Joshua’s case- in-chief. Joshua’s counsel inquired whether Jocelyn sought to have the pre-embryo turned over to her after entry of the protective order.

She replied: “I wanted to protect my child in any way that I could. So that was definitely an issue discussed as one of the primary issues[.]” After counsel sought to elicit how much time passed between the denial of the protective order and the settlement agreement, Jocelyn said that she did not remember but that it was a “couple weeks” or a “couple months.” Joshua testified next. He explained that he was supportive of Jocelyn during IVF and attended “[n]early all” her appointments and jointly made the decision with her to begin IVF treatments. According to Joshua, before entering into IVF, the parties did not discuss the impact of a potential divorce.

Joshua testified that he understood that neither he nor Jocelyn “are infertile by definition.” Joshua then addressed the protective order entered in the district court and visitation with their only child after the parties’ separation. He testified that, after the district court initially entered the protective order, his visitation with their only child was “extremely thin” and “always . . . supervised.” After a “significant amount of time,” Jocelyn agreed to additional supervised visitation, and, ultimately, the parties agreed to a shared custody schedule. Joshua then described his concerns about having another child with Jocelyn: My concerns would be, first off, would be her health, the potential fetus’s health given age, as she testified to. And also financial responsibility and access of being a parent.

It is proven that it is half hers and half mine. I think given our current situation with access and parenting rights on my part, I believe it would just be a repeat offense, that I would be withheld time from that potential child. 15 On cross-examination, Joshua conceded that, while he and Jocelyn may “have had [their] disagreements,” he agreed to share custody of their child with her. The judge then asked Joshua to specify his desire as to “what would happen to the embryo.” Joshua responded that he wanted Jocelyn “not [to] have access. I do not in [any] way, shape or form wish to have another child with her given the current circumstance with divorce.” Instead, he asked “that it either be destroyed or potentially donated for use by a needy family with both of us giving away our parental rights to it.” Joshua further clarified that donation would be to satisfy our religious take on this situation that life is obviously very valuable.

However, if it comes down to the [c]ourt making the decision for seeing us to donate it or destroy it, as long as she doesn’t have use and we don’t have responsibility, I think that is the most appropriate thing. * * * [I]f it comes down to use or destruction, I choose destruction. The court further clarified that, even if Joshua’s “parental rights and parental responsibilities somehow could be eliminated,” Joshua would still not want Jocelyn to have the frozen pre-embryo. Jocelyn was then called for rebuttal. She testified that the parties had discussed what would happen with the pre-embryo on prior occasions after their separation, and Joshua consistently indicated that he preferred donation.

The court then asked Jocelyn to specify her intended use for the frozen pre-embryo. She replied: I would like to have another child. That is my baby. The fertility process was absolutely horrible.

I gave up my career. I gave up my time. I gave up my health. And it is the same thing. . . .

The one thing that I wanted since I was a little kid was to be a Mom. And to be told that I couldn’t be and that I had to go through this process. And I did. And I worked so hard 16 at it.

I went to every single appointment. He didn’t go to all of the appointments. There were times I was there three times a day and I would go home and take him the cup, so he would give a sample and come back. I sacrificed so much of my life and my time for this child.

And I have a beautiful child who is amazing. But my intent, and I promised myself before I started the IVF process, was to give every single child that I created a chance at life. Because if I’m going to create life, it is my responsibility to take care of it. And I want to have that other baby.

I don’t have any issues supporting myself. In response to another question from the judge, she testified that, to her knowledge, she was still able to produce eggs and had not been told otherwise by a medical expert. The court then heard closing argument from counsel and took the matter under advisement. Memorandum Opinion and Order On November 20, 2019, the circuit court entered a memorandum opinion and order.

After briefly summarizing the facts, the circuit court noted that while “Maryland lacks prior authority regarding the disposition of frozen embryos[,]” “[t]hree leading approaches have evolved to resolve these disputes: (1) the contractual approach, (2) the contemporaneous mutual consent approach, and (3) the balancing test.” The court analyzed the case under each approach. Under the contractual approach, relying on Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the court noted that “a contract regarding the disposition of embryos created through IVF is presumed valid and enforceable.” The court determined that the IVF Contract “was unambiguously a ‘binding contract’ which ‘controls the . . . disposition of embryos which are frozen during an IVF cycle at FCM.’” Specifically, the court found the following provision dispositive: “It is the policy of FCM that embryos produced by the joining of eggs and sperms are subject to disposition in a manner mutually agreed upon by the 17 partners.” While other provisions concerned divorce when only one party donated gametes, the court determined that “divorce has no impact when both parties are gamete providers[.]” Accordingly, the court determined “if a court of competent jurisdiction adopts the contractual approach, this unambiguous contract is enforceable, and the disposition of the embryo requires mutual consent of the parties.” Turning to the contemporaneous mutual consent approach, and relying on In re Marriage of Witten, 672 N.W.2d 768, 777-78 (Iowa 2003), the court summarized that “if mutual consent cannot be achieved the status quo is preserved in the hopes that the parties may reach an agreement at some later time.” The court determined that, because the parties do not agree, the “embryo is to remain frozen until the parties agree on a disposition.” Finally, after summarizing the framework provided in Davis, 842 S.W.2d at 603 ; In re Marriage of Rooks, 429 P.3d 579, 595 (Colo. 2018); and McQueen v. Gadberry, 507 S.W.3d 127, 143-47 (Mo. Ct. App. 2016), the court determined that applying the balancing test “would preclude a decision allowing for the implantation of the embryo.” Specifically, the court found: Neither party in this case seeks to donate the embryos, therefore the parties are on equal footing regarding the first factor. Regarding the second factor, while [Jocelyn] was assessed to be infertile without the aid of IVF, she produced a child through IVF in the past and testified that she is physically capable of repeating the process. . . .

No evidence in the form of expert testimony, or otherwise, was produced showing that she is incapable of having biological children through any means other than the implantation of the embryo. Regarding the third factor, IVF was not pursued to preserve either parties’ individual ability to have children in the face of fertility implicating medical treatment, rather the parties’ original reason for undertaking IVF was to have children jointly as a married couple. . . . 18 Regarding the fourth factor, the hardship for [Joshua] includes the typical hardships of unwanted parenthood. Moreover, [Joshua] already shares a child with [Jocelyn] and testified to difficulties in co-parenting. . . . Regarding the fifth factor, there is no evidence of bad faith or any attempt by either parent to use the embryo as unfair leverage in the divorce proceedings.

In sum, the court determined that “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, with the parties sharing all expenses associated with storage until mutual consent is reached.” Jocelyn noted a timely appeal. Agreement with Cryobank In advance of oral argument on January 11, 2021, we requested that the parties be prepared to address whether, under the following provisions of the IVF Contract entered into by the parties on September 9, 2015, the controversy has become moot: “In the event that embryo(s) have been in storage for five (5) years, it is the policy of FCM that the disposition of the frozen embryos should occur at that time. While the couple may elect to undertake disposition of the embryo(s) prior to that time (which may include transferring them to the uterus of the female to attempt pregnancy, transfer to another facility, disposal or donation to another couple).

The Couple agrees to make a determination before the expiration of the five (5) years of storage plan. The Couple understands that FCM will provide them with a thirty (30) days advance notice that the five (5) years has elapsed, such notice to be in the form of a certified letter at the last known address as it appears in FCM’s medical records. If I/we do not respond or cannot be contacted, FCM is hereby authorized to discard any remaining frozen embryos according to laboratory procedure.” (Emphasis in original). In response, on the evening before oral argument counsel for Jocelyn provided this Court with a copy of the Storage Agreement with Cryobank, without further explanation. 19 The Storage Agreement states that “Cryobank will store the Embryos at its facility in accordance with applicable law and its standard policies and procedures.” The Agreement further contains a section titled “Disposition of Embryos Upon Death or Divorce.” This section provides: Clients have reached a mutual decision and are in agreement about the disposition of the Embryos in certain circumstances, as provided below, and Clients acknowledge that Cryobank will require no additional notice, consent, waiver or instructions in complying with the following: 6.1 In the event of the death of one Client, as evidenced by a certified copy of the death certificate, the surviving Client will have ownership and control of the Embryos stored with Cryobank. 6.2 In the event of the death of both Clients, the Embryos will be disposed of by thawing with no further action, which will render the Embryos permanently and irretrievably unusable for any purpose. 6.3 In the event of legal separation or divorce of the Clients, ownership and control of the Embryos stored with Cryobank are to be specified in a divorce decree or other legally binding document, a certified copy of which will be provided to Cryobank.

Absent such documentation, ownership will remain with both Clients. 6.4 Clients may change these instructions in the future only by providing Cryobank with new written instructions bearing the notarized signatures of both individuals. (Bold emphasis in original; italics and underlined emphasis added). The Storage Agreement contains a choice of laws provision that the “validity, performance and all matters relating to the effect of this Agreement and any amendment hereto shall be governed by the laws of the Commonwealth of Virginia and the federal laws of United States of America, without regard to any conflict of law rules.” The Agreement “supersedes all prior agreements among the Parties, and constitutes the entire 20 agreement among the Parties with regard to the subject matter hereof.” It will terminate upon the occurrence of certain events, including the “failure to pay storage or other fees,” in which case the “[e]mbryos will be deemed ‘abandoned’ by Clients, and automatically become the sole and exclusive property of Cryobank[.]” In that event, the frozen pre- embryo “may be discarded or used or donated for scientific or research purposes, but will not be used to cause pregnancy.” Both parties confirmed at oral argument that the Storage Agreement replaced the IVF Contract. STANDARD OF REVIEW As directed under Maryland Rule 8-131(c), when an action has been tried without a jury, we apply the clearly erroneous standard of review to the trial court’s factual findings and review the court’s decision for legal error.

Although the issue raised in this appeal is novel, the standards that guide our review are well-established. The “interpretation of a contract, including the question of whether the language of a contract is ambiguous, is a question of law subject to de novo review.” Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 392 (2019) (citations omitted). Accordingly, we accord no deference to the circuit court’s interpretation of the IVF Contract.

We generally review the circuit court’s custody determination under an abuse of discretion standard. Santo v. Santo, 448 Md. 620, 625 (2016). Likewise, we review a trial court’s distribution of marital property for abuse of discretion. Hart v. Hart, 169 Md. App. 151, 162 (2006).

Therefore, we accord wide deference to the trial court’s balancing of interests absent an enforceable agreement. Even under this deferential review, however, a court’s discretion is always tempered by the requirement that the court apply the correct 21 legal standards. Faulkner v. State, 468 Md. 418, 460-61 (2020) (citing Jackson v. Sollie, 449 Md. 165, 196 (2016)); Matter of Dory, 244 Md. App. 177, 203 (2019) (“[T]rial courts do not have discretion to apply incorrect legal standards and a failure to consider the proper legal standard in reaching a decision constitutes an abuse of discretion.” (cleaned up)). DISCUSSION I. Legal Framework for Determining Custody of Frozen Pre-Embryos A. Parties’ Contentions Jocelyn and Joshua agree that the ownership of frozen and stored pre-embryos is a matter of first impression in Maryland.

Jocelyn further avers that, because “neither Maryland’s marital property laws,” codified at Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”), § 8-205, “nor Maryland’s Statute on Assisted Reproduction [FL § 5-1001(d)] . . . provide an appropriate answer to the disposition of embryos, this Court must look to the law of other jurisdictions for guidance.” Jocelyn urges us to follow the majority of states that employ both the contractual approach and balancing-of-interests test to resolve this dispute over their jointly created and then frozen pre-embryo. Joshua asserts that the “contractual approach is the proper approach as the contract at issue is unambiguous and requires the mutual consent of the parties for disposition of the embryo[.]” 22 B. Reproductive Autonomy and Marital Interests Neither this Court nor the Court of Appeals has classified the legal status of a frozen pre-embryo. The Maryland General Assembly, likewise, has not addressed the subject directly.9 On the one hand, the frozen pre-embryo in this case has certain characteristics consistent with the broad definition of “marital property” under Maryland law.

Section 8- 201(e)(1) of the Family Law Article classifies “marital property” as “the property, however titled, acquired by 1 or both parties during the marriage.” Jocelyn and Joshua have rights, collectively, to direct a facility holding the frozen pre-embryo to transfer, donate, or dispose of the pre-embryo, and it is clear that the pre-embryo was created during the parties’ marriage. We must also recognize, however, the parties’ unique and personal interests in the cryopreserved pre-embryo and that Jocelyn believes, as do others, that “the embryo is 9 The Maryland Code includes no reference to “pre-embryo” and only a few references to “embryo.” The term is included in FL § 1001(d) in the definition of “assisted reproduction” as a “method of causing pregnancy other than sexual intercourse.” The term is referenced in the definition of “decedent” in the Estates and Trusts Article to clarify that it is not included in the definition. Maryland Code (1974, 2017 Repl. Vol.), Trusts and Estates Article, § 4-501(d)(3).

Finally, the term is referenced in the definition for “human cloning” under Part III, Stem Cell Research, in the subtitle concerning the Maryland Technology Development Corporation. Maryland Code (2008, 2018 Repl. Vol.), Economic Development Article, § 10-429(f) (‘“Human cloning’ means the replication of a human being through the production of a precise genetic copy of nuclear human DNA or any other human molecule, cell, or tissue in order to create a new human being or to allow development beyond an embryo.”). 23 human and capable of developing into an adult.”10 The complexity of the human embryo— the science and bundle of competing interests wrapped up in it—has challenged scientists, theologians, legal scholars, and ethicists across many disciplines since ancient times.11 Jocelyn and Joshua’s “competing interests in the disputed pre-embryo[] derive from constitutional rights in the realm of reproductive choice.” In re Marriage of Rooks, 429 P.3d 579, 586 (Colo. 2018). At its core, reproductive autonomy “is composed of two rights of equal significance—the right to procreate and the right to avoid procreation.” Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992).

The Supreme Court of the United States has recognized that procreation is a “basic civil right” and that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). In articulating the fundamental right to privacy grounded in the Constitution, the Supreme Court has acknowledged an individual’s personal interest in procreation: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). Mirroring the right to procreate, the Supreme Court has recognized the authority 10 See Samuel B. Casey & Nathan A. Adams, IV, Specially Respecting the Living Human Embryo by Adhering to Standard Human Subject Experimentation Rules, 2 Yale J. Health Pol’y, L. & Ethics 111 (2001). 11 Embryologist and historian, Joseph Needham, attributed the “beginnings of systematic embryological knowledge” to Hippocrates (born circa 460 B.C.E.).

Joseph Needham, A History of Embryology 36 (Abelard-Schuman, 2d Ed. 1959) (1934). 24 of an individual to avoid procreation. In its landmark decision in Griswold v. Connecticut, the Court held that a Connecticut law banning the use of contraception unconstitutional because the law intruded on the fundamental right of marital privacy. 381 U.S. 479 , 485- 96 (1965). Our Court of Appeals has likewise acknowledged the fundamental privacy interests at stake and described parenthood as an essential interest: At stake here is the interest of a parent in the companionship, care, custody, and management of his or her children. This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility.

Far more precious . . . than property rights, parental rights have been deemed to be among those essential to the orderly pursuit of happiness by free men. In re Adoption/Guardianship No. 10941, 335 Md. 99, 113 (1994) (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 38 (1981)). 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.

In Davis v. Davis, the Supreme Court of Tennessee referenced various ethical standards from the Report of the Ethics Committee of The American Society for Reproductive Medicine, formerly known as The American Fertility Society: 12 The American Fertility Society’s report further “call[ed] upon those in charge of 12 IVF programs to establish policies in keeping with the ‘special respect’ due preembryos”: Within the limits set by institutional policies, decision-making authority regarding preembryos should reside with the persons who have provided the gametes. . . . As a matter of law, it is reasonable to assume that the gamete (Continued) 25 Three major ethical positions have been articulated in the debate over preembryo status. At one extreme is the view of the preembryo as a human subject after fertilization, which requires that it be accorded the rights of a person. This position entails an obligation to provide an opportunity for implantation to occur and tends to ban any action before transfer that might harm the preembryo or that is not immediately therapeutic, such as freezing and some preembryo research.

At the opposite extreme is the view that the preembryo has a status no different from any other human tissue. With the consent of those who have decision-making authority over the preembryo, no limits should be imposed on actions taken with preembryos. A third view—one that is most widely held—takes an intermediate position between the other two. It holds that the preembryo deserves respect greater than that accorded to human tissue but not the respect accorded to actual persons. 842 S.W.2d 588 at 596 (citation omitted).13 In light of this guidance, the Davis Court concluded: that preembryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential for human life. providers have primary decision-making authority regarding preembryos in the absence of specific legislation on the subject.

A person’s liberty to procreate or to avoid procreation is directly involved in most decisions involving preembryos. Davis, 842 S.W. 2d at 597 (citation omitted). 13 Although relatively few states have legislated in this area, the disparity of views, represented by the laws established so far, is stark. On one end of the spectrum, under Louisiana law, a viable pre-embryo resulting from IVF is a “juridical person” that may sue and be sued. La.

Stat. Ann. §§ 9:124 , 126 (2020). On the other end, for example, the Court of Appeals of Oregon interpreted section 107.105 of the Oregon Revised Statutes, to include a frozen pre-embryo within the definition of “personal property that is subject to a ‘just and proper’ division[.]” In re Marriage of Dahl and Angle, 194 P.3d 834, 839 (2008). 26 Id. at 597.14 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.” Eisenstadt, 405 U.S. at 453 . Recognizing the unique interests involved, we turn to consider the various approaches used by courts to determine a party’s rights to a cryopreserved pre- embryo. C. Three Common Law Approaches Without Maryland caselaw to guide our inquiry, we look to other states that have addressed the issue of who should be awarded, upon dissolution of the progenitors’ marriage or partnership, any remaining frozen pre-embryos that were created by the couple through in vitro fertilization.

As mentioned above, courts have utilized or combined aspects of three analytical approaches: (1) the contractual approach; (2) the contemporaneous mutual consent approach; and (3) the balancing approach. Rook, 429 P.3d at 587 ; Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super Ct. 2012).15 14 Other courts have categorized pre-embryos as “marital property of special character,” recognizing “that pre-embryos contain the potential for human life and are formed using genetic material from two parties with significant, but potentially competing, interests in their ultimate disposition.” Rooks, 429 P.3d at 591 ; see also McQueen v. Gadberry, 507 S.W.3d 127, 149 (Mo. Ct. App. 2016) (“Though frozen pre-embryos may never realize their biologic potential, even if implanted, they are unlike traditional forms of property or external things because they are comprised of a woman and man’s genetic material, are human tissue, and have the potential to become born children.”).

Even “[w]ithin these approaches, courts generally agree that when the parties state 15 their unambiguous intent with respect to the disposition of frozen embryos, such (Continued) 27 1. The Contractual Approach Under this approach, the court first “look[s] to any prior agreements between the parties regarding the disposition of cryopreserved pre-embryos.” Reber, 42 A.3d at 1134 . This approach recognizes: Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them. Indeed, parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify 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 any litigation are simply incalculable. Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998) (citation omitted).16 agreements will be dispositive.” Michael T. Flannery, Rethinking Embryo Disposition upon Divorce, 29 J. Contemp. Health L. & Pol’y 233, 238 (2013).

A minority of courts, however, have concluded that such agreements may be unenforceable as against public policy. See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1056-57 (Mass. 2000) (determining that the court “would not enforce an agreement that would compel one donor to become a parent against his or her will”); J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001) (adopting a rule “to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos”). 16 Scholars and professional organizations urge states to pass legislation requiring couples to identify what should become of their cryopreserved pre-embryos in the event of divorce or dissolution of their partnership. See, e.g., Flannery, supra, at 235. The Supreme Court of Connecticut observed that, various professional associations focusing on the field of reproductive medicine recommend that progenitors provide advance directives regarding disposition of their pre-embryos in various scenarios, including divorce.

E.g., Ethics Committee of the American Society for Reproductive Medicine, “Disposition of Abandoned Embryos: A Committee Opinion,” 99 Fertility & Sterility 1848, 1848 (2013), available at https://www.asrm.org/globalassets/asrm/asrm-content/news-and- (Continued) 28 In Szafranski v. Dunston, the Appellate Court of Illinois held that the parties, Jacob and Karla, “reached a binding oral contract concerning the use of pre-embryos that, unless modified or contradicted, remained in full force and effect.” Szafranski v. Dunston (Szafranski II), 34 N.E.3d 1132 , 1155 (Ill. App. Ct. 2015). Because no other agreement overrode the parties’ oral contract, the Court held that it controlled. Id.

In that case, Karla was