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1879

PRE-EMBRYO CUSTODY BATTLES: HOW

PREDISPOSITION CONTRACTS COULD BE THE

WINNING SOLUTION

Ashley Alenick

†

TABLE OF CONTENTS

INTRODUCTION .............................................................................................................. 1880

I. B

ACKGROUND ......................................................................................................... 1883

A. In Vitro Fertilization ................................................................................. 1883

B. Courts in the United States Have Three Main Approaches for

Resolving Dispositional Disputes About Frozen Pre-Embryos in the

Context of a Divorce Proceeding .............................................................. 1884

II. T

HE PREDISPOSITION CONTRACT IS THE BEST OF THE THREE JUDICIAL

APPROACHES, BUT RAISES SOME CONCERNS ABOUT PROCEDURAL AND

SUBSTANTIVE FAIRNESS ......................................................................................... 1889

III. T

HE PREDISPOSITION APPROACH SHOULD BE HONED WITH REFERENCE TO

THE

PARADIGM OF PRENUPTIAL AND SURROGACY AGREEMENTS ..................... 1894

A. Both Prenuptial and Surrogacy Agreements Are Analogous to the

Predisposition Contract ............................................................................. 1895

1. The Prenuptial and Predisposition Agreements Are

Historically, Conceptually, and Generically Similar ................. 1895

a. Similarities in History Reveal that Predisposition

and Prenuptial Agreements Further the Same Public

Policies, such that the Latter May Be a Logical

Paradigm for Implementing the Former ........................ 1895

b. Prenuptial and Predisposition Agreements Are

Fundamentally Similar in Concept, Suggesting that

†

Associate Editor, Cardozo Law Review, Volume 38. J.D. Candidate (June 2017), Benjamin

N. Cardozo School of Law; B.A. New York University, 2013. I would like to thank Professor

Peter Goodrich for his advice as my Note advisor. I would also like to express my gratitude to

all of the Cardozo Law Review editors for their hard work in making the publication of this

Note a reality. Most importantly, thank you to my family for your endless support and

encouragement during this process, as well as throughout law school and beyond.

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the Former Could Be a Paradigm for the Latter ............ 1896

c. Generic Similarities Further Support the Proposition

that Prenuptial Contracts May Be Models for

Predisposition Agreements .............................................. 1897

2. Predisposition Contracts Can Gain Force from Surrogacy

Agreements, Another Type of Ante-Natal Contract Whose

Enforcement Is Predicated upon Procedural and

Substantive Fairness ...................................................................... 1899

B. Safeguards to Assure Procedural Fairness in the Realm of

Prenuptial and Surrogacy Agreements Would Also Address the

Concerns About Predisposition Contracts Pertaining to Frozen Pre-

Embryos ....................................................................................................... 1901

1. Procedural Fairness in the Context of Prenuptial

Agreements Requires Voluntariness and Full Disclosure of

Finances .......................................................................................... 1902

2. Surrogacy Contracts Are Procedurally Fair if the Parties

Have Had the Opportunity to Seek Independent Counsel,

Compensation Is Reasonable, and the Gestator Has the

Right to Rescind Following Delivery .......................................... 1904

C. Substantive Fairness Protections as Applied to Prenuptial and

Surrogacy Agreements Could, Likewise, Pertain to Predisposition

Contracts ..................................................................................................... 1907

1. Substantive Fairness in the Realm of Prenuptial

Agreements Focuses on Unforeseen Developments that

Would Cause Hardship ................................................................ 1907

2. The Ramifications of Intervening Events Are Likewise a

Key Factor for Courts in Determining Whether a Surrogacy

Contract Is Substantively Fair ...................................................... 1909

IV. P

ROPOSAL ................................................................................................................ 1910

A. Predisposition Contracts Should Be Separate from Informed

Consent Forms to Assure Procedural Fairness ....................................... 1910

B. Predisposition Contracts Should Consider Biological Realities to

Assure Substantive Fairness ...................................................................... 1913

ONCLUSION................................................................................................................... 1914

NTRODUCTION

Starting a family through pregnancy is not always easy. For some,

conceiving a child is a daunting medical odyssey punctuated by

reproductive assistance after attempts at natural conception prove

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unsuccessful. In vitro fertilization (IVF)

is one such method of medical

reproductive assistance that has greatly assisted couples struggling with

procreation.

Yet, this medical process is not without legal

complications.

Such complications arise because IVF not only provides a means

for achieving pregnancy in the present, but also includes the potential

for doing so in the future through the use of pre-embryos that are frozen

for implantation at a later time.

The legal issues arise when a couple has

opted to divorce,

and disagree about the disposition of the frozen pre-

embryos that remain following IVF. For example, one party may want

the frozen pre-embryos for future implantation whereas another may

prefer to have them donated for research.

The courts are not united in

their approaches for deciding such disputes.

IVF, the most effective form of assisted reproductive technology, “is a complex series of

procedures used to treat fertility or genetic problems and assist with the conception of a child.

During IVF, mature eggs are collected (retrieved) from [a woman’s] ovaries and fertilized by

sperm in a lab.” In Vitro Fertilization (IVF): Overview, M

AYO CLINIC, http://

www.mayoclinic.org/tests-procedures/in-vitro-fertilization/basics/definition/prc-20018905 (last

visited Jan. 7, 2016). The fertilized eggs are then implanted into a woman’s uterus, either that of

the intended mother or a gestational carrier. Id.

Since being introduced in the United States in 1981, IVF has resulted in more than

200,000 babies. Infertility and In Vitro Fertilization, W

EBMD, http://www.webmd.com/

infertility-and-reproduction/guide/in-vitro-fertilization (last visited Sept. 7, 2015).

“Extra embryos can be frozen and stored for future use for several years. Not all embryos

will survive the freezing and thawing process, although most will. Cryopreservation can make

future cycles of IVF less expensive and less invasive.” In Vitro Fertilization (IVF): How You

Prepare, M

AYO CLINIC, http://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/

basics/how-you-prepare/prc-20018905 (last visited Jan. 7, 2016).

Similar issues may also arise where a couple that is not married differs as to the

disposition of frozen pre-embryos at the conclusion of the relationship. This Note considers the

issue only in the context of a married couple that has opted to divorce, has a pre-disposition

contract, and has asked the court to decide how to dispose of frozen pre-embryos that remain

following IVF.

See Helene S. Shapo, Frozen Pre-Embryos and the Right to Change One’s Mind, 12 DUKE

J. COMP. & INT’L L. 75, 80 (2002) (“The choices include destroying the pre-embryos, giving

them to the clinic for research, donating them to another couple, and releasing them to one of

the parties.”).

As described at greater length in Section I.B., infra, the first such approach is a

constitutional analysis through which the court determines the fate of pre-embryos by

balancing one party’s right to procreate against the other’s right not to. See, e.g., Davis v. Davis,

842 S.W.2d 588 (Tenn. 1992). The second approach requires the contemporaneous agreement

of the parties, pending which agreement the court maintains the status quo and directs that the

pre-embryos remain frozen. See, e.g., Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶¶ 27–

31. Under the third approach, the court enforces a contract into which the parties entered at the

time of IVF, in which they provide for the disposition of pre-embryos in the event of divorce.

See, e.g., Kass v. Kass, 91 N.Y.2d 554 (1998).

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Judicial cacophony in this area is troubling given the reality that

both IVF and divorce are fairly commonplace in the United States.

The

issue as to which of the divorcing spouses will receive possession of the

frozen pre-embryos, therefore, is a recurring one.

Having a uniform

legal standard is important to the efficient and effective resolution of

this enduring concern. What is impeding the path toward a single

cognizable judicial standard?

The complication may lie in the nature of frozen pre-embryos

themselves because they evoke many difficult and debatable

considerations. For example, frozen pre-embryos represent potential

life, thereby implicating religious beliefs.

They delve into the realm of

procreation, prompting discussion about privacy rights.

They could be

viewed as a species of property, thus occasioning debate as to the policy

implications of such a characterization.

These thought-provoking

issues may be at the core of why the courts have yet to establish a

uniform legal standard for disposing of frozen pre-embryos despite the

compelling need for one.

This judicial dilemma is entirely avoidable through the use of a

predisposition contract that adopts the standards required to enforce

similar ante-natal arrangements. More specifically, this Note posits that

disputes about the disposition of frozen pre-embryos should be decided

based upon a contract between the divorcing spouses entered into

before IVF that comports with the procedural and substantive fairness

standards for enforcing both a prenuptial and surrogacy agreement.

This Note proceeds in four parts. Part I discusses the background

of IVF and provides further detail about the three approaches courts

presently use to award frozen pre-embryos in a divorce proceeding. Part

II suggests that a predisposition contract

is the preferred model, albeit

See, e.g., Kass, 91 N.Y.2d at 557; see also Marriage & Divorce, AM. PSYCHOL. ASS’N, http://

www.apa.org/topics/divorce (last visited Jan. 7, 2016) (noting that forty to fifty percent of

married couples in the United States divorce).

“It has been estimated that tens of thousands of pre-embryos are frozen each year,” thus

enhancing the possibility that disposition could become an issue for resolution in divorce

proceedings. See Shapo, supra note 5, at 76.

See, e.g., Davis, 842 S.W.2d at 594 ([“T]he trial judge concluded that the eight-cell entities

at issue were not pre[-]embryos but were ‘children in vitro.’”).

Id. at 598 (“We conclude that the answer to this dilemma [whether the parties will

become parents] turns on the parties’ exercise of their constitutional right to privacy.”).

Id. at 596 (stating that “the Court of Appeals has left the implication that [the parties’

interest in pre-embryos] is in the nature of a property interest” and concluding “that this point

must be further addressed”); see also Bridget M. Fuselier, The Trouble with Putting All of Your

Eggs in One Basket: Using a Property Rights Model to Resolve Disputes over Cryopreserved Pre-

Embryos, 14 T

EX. J. ON C.L. & C.R. 143 (2009).

Predisposition contracts “provide a scheme for the disposition of frozen embryos in the

event of contingencies, such as divorce.” Noel A. Fleming, Navigating the Slippery Slope of

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with some concerns about procedural and substantive fairness. Part III

compares predisposition contracts with prenuptial and surrogacy

agreements, and argues that the heightened standards for assuring that

the latter two are both procedurally and substantively fair should also

apply when enforcing the former. Finally, Part IV applies the paradigm

for implementing prenuptial and surrogacy contracts to predisposition

agreements, and proposes that courts enforce the latter only if separate

from any medical consent form, voluntarily made, and based upon full

disclosure so as to assure procedural fairness. Part IV further proposes

that courts consider whether enforcement of a predisposition contract

would result in one of the parties being unable to achieve genetic

parenthood as the test for determining substantive fairness.

BACKGROUND

A. In Vitro Fertilization

IVF involves the removal of ova

from a woman,

fertilization of

the ova in a petri dish using sperm provided from a man, and

transferring the product of this process into the uterus of a woman.

more fully explained in Kass v. Kass,

the IVF procedure begins with

hormonal stimulation of a woman’s ovaries so as to yield multiple

eggs.

These eggs are removed by laparoscopy

and fused with the

sperm to create a pre-zygote.

The pre-zygotes divide, becoming a pre-

Frozen Embryo Disputes: The Case for a Contractual Approach, 75 TEMP. L. REV. 345, 370

(2002).

Ova is the plural of ovum, defined as “the female reproductive cell . . . which is capable of

developing, usually only after fertilization, into a new individual.” Ovum, D

ICTIONARY.COM,

http://www.dictionary.com/browse/ova (last visited Jan. 9, 2017).

This Note assumes that the woman and man are husband and wife, however the analysis

provided could also apply to same-sex married couples who had frozen embryos and are

seeking divorce, as well as to unmarried couples ending their relationship.

Davis, 842 S.W.2d at 591.

Kass v. Kass, 91 N.Y.2d 554, 557–58 (1998).

The fertility hormone used to increase the number of produced ova is gonadotropin.

IVF—What Is In Vitro Fertilisation (IVF) and How Does It Work?, H

UM. FERTILISATION &

EMBRYOLOGY AUTHORITY, http://www.hfea.gov.uk/IVF.html (last visited Jan. 7, 2016)

[hereinafter H

UM. FERTILISATION & EMBRYOLOGY AUTHORITY].

Laparoscopy is a “type of surgery in which small incisions are made in the abdominal

wall through which a laparoscope and other instruments can be placed to permit structures

within the abdomen and pelvis to be seen.” See Medical Definition of Laparoscopy,

EDICINENET.COM, http://www.medicinenet.com/script/main/art.asp?articlekey=6211 (last

updated May 13, 2016).

See HUM. FERTILISATION & EMBRYOLOGY AUTHORITY, supra note 17. More specifically,

the eggs are collected using ultrasound guidance, mixed with the sperm, and cultured in the

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embryo,

and after reaching the four- to eight-cell stage, are transferred

to the woman’s uterus by cervical catheter.

The hope is that the pre-

embryo will attach to the uterine wall and develop into a fetus.

Although multiple eggs are implanted during the IVF procedure,

the total removed from the woman may exceed the number that are

transferred back as pre-embryos.

The remaining pre-embryos may be

cryopreserved—frozen in liquid nitrogen for later use.

Because cryopreservation can sustain pre-embryos for many years,

intervening circumstances, including divorce, can arise and lead to

disagreement about disposition of the remaining organisms.

To date,

courts have adopted three approaches for resolving these disputes.

B. Courts in the United States Have Three Main Approaches for

Resolving Dispositional Disputes About Frozen Pre-Embryos in the

Context of a Divorce Proceeding

Courts in the United States are not united in their approach for

resolving disputes about frozen pre-embryos when the spouses who

laboratory for sixteen to twenty hours after which point they are checked for signs of

fertilization. Id.

Gametes are the sexual reproductive cells (egg and sperm) that unite to form a pre-

zygote. See Gamete, D

ICTIONARY.COM, http://www.dictionary.com/browse/gamete (last visited

Jan. 9, 2017). More specifically, pre-zygotes are “eggs which have been penetrated by sperm but

have not yet joined genetic material.” Litowitz v. Litowitz, 48 P.3d 261, 524 n.51 (Wash. 2002)

(en banc) (quoting Kass, 91 N.Y.2d at 557 n.1). A pre-embryo is defined as “that stage in

human development immediately after fertilization occurs. The pre[-]embryo ‘comes into

existence with the first cell division and lasts until the appearance of a single primitive streak,

which is the first sign of organ differentiation. This [primitive streak] occurs at about fourteen

days of development.’” Id. at 262 n.2 (second alteration in original) (quoting Donna A. Katz,

Article, My Egg, Your Sperm, Whose Preembryo? A Proposal for Deciding Which Party Receives

Custody of Frozen Preembryos, 5 V

A. J. SOC. POL’Y & L. 623, 628–29 n.42 (1998)). Courts use the

terms “pre-zygote” and “pre-embryo” interchangeably, despite the distinctions in definition.

Id. at 262 n.8. An embryologist monitors the development of the embryos so that the best

ones will be chosen for transfer. H

UM. FERTILISATION & EMBRYOLOGY AUTHORITY, supra note

17.

Litowitz, 48 P.3d at 262 n.8.

HUM. FERTILISATION & EMBRYOLOGY AUTHORITY, supra note 17. One or two pre-

embryos are transferred to a woman under the age of forty; a maximum of three pre-embryos

are transferred to those forty and older. “The number of embryos transferred is restricted

because of the risks associated with multiple births.” Id.

“Cryopreservation serves to reduce both medical and physical costs because eggs do not

have to be retrieved with each attempted implantation, and delay may actually improve the

chances of pregnancy.” Kass, 91 N.Y.2d at 557.

See, e.g., Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 28; J.B. v. M.B., 783 A.2d

707, 716 (N.J. 2001); Kass, 91 N.Y.2d at 558; Davis v. Davis, 842 S.W.2d 588, 591 (Tenn. 1992).

See Szafranski, 2013 IL App (1st) 122975, ¶ 16 (observing that courts have “generally

conducted three types of analyses” to determine disposition of pre-embryos in a divorce

proceeding).

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created them have decided to end their marriage.

The legal framework

for determining to whom the pre-embryos should be awarded divides

into three types of analyses.

Courts adopt either a constitutional

analysis,

a contemporaneous agreement approach,

or enforce a

contract into which the parties entered immediately prior to IVF that

includes a provision about disposition of the unused pre-embryos in the

event of divorce.

Under the constitutional analysis, the issue of disposition is framed

in terms of a balancing test of procreational interests that derives from

the protection of privacy as embedded in both state and federal

constitutions.

Though not expressly provided, the right to privacy is

inherent in the constitutional concept of liberty,

and includes the right

to procreate as well as the concomitant right to not.

Because the

disposition issue arises prior to the implantation of the pre-embryo, the

concerns about a woman’s bodily integrity that exist in the context of

abortion cases are not implicated, and the spouses are viewed as equal

providers.

A great tension arises when one spouse wishes to exercise

the right to procreate while the other wishes to exercise their right not

See supra note 6.

See Szafranski, 2013 IL App (1st) 122975, ¶ 16 (“Courts in other jurisdictions [that] have

addressed the issue [of cryopreserved pre-embryos] generally conducted three types of analyses

in resolving this question: (1) a contractual approach; (2) a contemporaneous mutual consent

approach; and/or (3) a balancing approach.”). More specifically, the contractual approach has

been adopted in five states. See id. ¶ 20; see also Dahl v. Angle, 194 P.3d 834, 840–41 (Or. Ct.

App. 2008); Davis, 842 S.W.2d at 597; Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006);

Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002) (en banc). Iowa and Missouri have adopted the

contemporaneous mutual consent approach. See Szafranski, 2013 IL App (1st) 122975, ¶ 30; see

also Gadberry v. Gadberry, No. 13SL-DR06185, at *9–11 (Mo. Cir. Ct. Apr. 13, 2015), aff’d sub

nom. McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016). The balancing approach has

been adopted in New Jersey, Pennsylvania, and Tennessee. See Szafranski, 2013 IL App (1st)

122975, ¶¶ 29, 33–36.

See, e.g., Davis, 842 S.W.2d at 603; see also supra note 6.

See, e.g., Szafranski, 2013 IL App (1st) 122975, ¶ 41.

See, e.g., Kass, 91 N.Y.2d at 557.

See Davis, 842 S.W.2d at 604 (balancing husband’s “interest in avoiding parenthood

[against wife’s] interest in donating the pre[-]embryos to another couple for implantation”).

Id. at 598–99.

Id. at 600–01. “[P]rocreational autonomy is composed of two rights of equal

significance—the right to procreate and the right to avoid procreation.” Id. at 601.

Spouses “must be seen as entirely equivalent gamete-providers.” Id. But see Planned

Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 71 (1976) (discussing abortion and stating

that “[i]nasmuch as it is the woman who physically bears the child and who is the more directly

and immediately affected by the pregnancy, as between the two, the balance weighs in her

favor”).

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to.

The constitutional analysis balances these interests in the context of

a dispute about pre-embryos remaining at the time of divorce.

The New Jersey Supreme Court applied the constitutional

approach in J.B. v. M.B,

where, in a divorce proceeding, the wife

wanted to destroy the frozen pre-embryos and the husband wanted

them donated to infertile couples.

Specifically, the court found that the

husband’s constitutional right to procreate would not be forfeited if the

pre-embryos were not donated, whereas the wife’s constitutional right

not to procreate would be forever lost if the pre-embryos were used in

any way.

Thus, the court ordered the pre-embryos be destroyed.

The contemporaneous approach posits a different view. Rather

than balance interests, courts applying this approach insist on

unanimous agreement.

If either spouse has had a change of mind

about the disposition agreement made at the time of IVF, that person’s

current objection takes precedence.

When a couple is unable to concur

on the disposition at the time of divorce, under the contemporaneous

approach, the court directs that the pre-embryos remain in storage until

such time a joint decision is reached.

Iowa’s Supreme Court applied the contemporaneous approach in

In re Marriage of Witten,

a case where the wife sought to use the pre-

“The equivalence of and inherent tension between these two interests are nowhere more

evident than in the context of in vitro fertilization.” Davis, 842 S.W.2d at 601.

See J.B. v. M.B., 783 A.2d 707, 716 (N.J. 2001) (stating that precedents on the right to

privacy in the context of procreational rights “provide a framework within which disputes over

the disposition of pre[-]embryos can be resolved”); see also Michelle F. Sublett, Note, Frozen

Embryos: What Are They and How Should the Law Treat Them, 38 C

LEV. ST. L. REV. 585 (1990)

(discussing the basis and development of the constitutional right to make individual decisions

about reproduction).

See J.B., 783 A.2d 707.

Id. at 710.

Id. at 717 (refusing to force the wife to become a biological parent against her will).

Id. at 720.

Specifically, the contemporaneous approach holds that “no embryo should be used by

either partner, donated to another patient, used in research, or destroyed without the

[contemporaneous] mutual consent of the couple that created the embryo.” In re Marriage of

Witten, 672 N.W.2d 768, 778 (Iowa 2003) (quoting Carl H. Coleman, Procreative Liberty and

Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84

MINN. L. REV. 55, 110 (1999)); Gadberry v. Gadberry, No. 13SL-DR06185, at *11 (Mo. Cir. Ct.

Apr. 13, 2015), aff’d sub nom. McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016); cf.

J.B., 783 A.2d 707.

See Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶¶ 26–28; Gadberry, No. 13SL-

DR06185, at *10–11.

Szafranski, 2013 IL App (1st) 122975, ¶ 28 (“Unlike the other possible disposition

decisions—use by one partner, donation to another patient, donation to research, or

destruction—keeping the embryos frozen is not final and irrevocable. By preserving the status

quo, it makes it possible for the partners to reach an agreement at a later time.” (quoting

Witten, 672 N.W.2d at 778)).

672 N.W.2d 768.

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embryos for future implantation over the objection of the husband who

sought an injunction prohibiting either party from using them without

both their written consents.

The court sided with the husband upon

concluding that the contemporaneous approach was the best of the

three options.

The third approach for resolving these disputes relies upon a

contract set forth in a consent form that the spouses sign prior to IVF

containing a provision for the disposition of the pre-embryos in the

event of divorce.

Some jurisdictions recognize an exception to the

contract approach where one of the parties is unable to achieve

parenthood other than through use of the frozen pre-embryos.

This third approach is the one courts most often apply, perhaps

most famously so in Davis v. Davis.

Though the spouses in Davis had

no predisposition contract governing the unused pre-embryos, the

Tennessee Supreme Court expressly addressed the enforceability of

prior agreements, stating that such arrangements should be

determinative.

Id. at 772–73.

Specifically, the court rejected the contract approach upon finding that “it would be

against the public policy of this state to enforce a prior agreement between the parties in this

highly personal area of reproductive choice when one of the parties has changed his or her

mind concerning the disposition or use of the embryos.” Id. at 781. Similarly, the court rejected

the constitutional approach based on “the grave public policy concerns we have with the

balancing test, which simply substitutes the court as decision maker.” Id. at 783; see also

Gadberry, No. 13SL-DR06185, at *13 (awarding the frozen pre-embryos jointly “due to the

special character of this marital property,” and prohibiting either divorcing spouse from

transferring, releasing, or using them without the signed authorization of the other).

See, e.g., Szafranski, 2013 IL App (1st) 122975, ¶¶ 4–6; see also Kass v. Kass, 91 N.Y.2d

554, 565 (1998) (“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.” (citing Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992))); Dahl v. Angle, 194

P.3d 834, 840 (Or. Ct. App. 2008) (concluding that “the general framework set forth by the

courts in Davis and Kass, in which courts give effect to the progenitors’ intent by enforcing the

progenitors’ advance directive regarding the embryos, is persuasive”); Davis, 842 S.W.2d at 597;

Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006) (“[A]llowing the parties voluntarily to

decide the disposition of frozen embryos in advance of cryopreservation, subject to mutual

change of mind, jointly expressed, best serves the existing public policy of this State and the

interests of the parties.”); Litowitz v. Litowitz, 48 P.3d 261, 268 (Wash. 2002) (en banc)

(enforcing the predisposition contract on which both parties rely “in asserting their rights”).

Davis, 842 S.W.2d at 604 (noting, without further analysis, that “[t]he case would be

closer if Mary Sue Davis were seeking to use the pre[-]embryos herself, but only if she could not

achieve parenthood by any other reasonable means”). This Note posits that, in such a case,

enforcing the predisposition contract would be substantively unfair. See infra Section IV.B.

842 S.W.2d 588.

The court specifically stated in what has become influential dicta that predisposition

agreements must be enforced

in order to provide the necessary guidance to all those involved with IVF procedures

in Tennessee in the future—the health care professionals who administer IVF

programs and the scientists who engage in infertility research, as well as prospective

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In Kass v. Kass,

the New York Court of Appeals also applied the

predisposition contract approach. In Kass, the husband and wife

underwent IVF, as a result of which five pre-embryos were

cryopreserved.

Prior to implantation, the husband and wife signed a

consent form pursuant to which they directed that, in the event of

divorce, the IVF program would keep any unused frozen pre-embryos

for research.

Notwithstanding the consent form, the wife requested

sole custody of the pre-embryos at the time of the parties’ divorce so

that she could undergo another round of IVF.

In denying the wife’s

request, the court was persuaded by the parties’ clear intention set forth

in their predisposition agreement.

The court respected and enforced

this intent based on its belief that the spouses should be the sole

decision-makers as to this quintessentially personal issue.

parents seeking to achieve pregnancy by means of IVF, their physicians, and their

counselors.

Id. at 597. The court proceeded to state that it

believe[s], as a starting point, that an agreement regarding disposition of any

untransferred pre[-]embryos in the event of contingencies (such as . . . divorce . . . )

should be presumed valid and should be enforced as between the progenitors. This

conclusion is in keeping with the proposition that the progenitors, having provided

the gametic material giving rise to the pre[-]embryos, retain decision-making

authority as to their disposition.

Id.; accord Litowitz, 48 P.3d at 267 (recognizing that the Tennessee Supreme court “has wisely

observed” that disputes involving disposition of pre-embryos should be resolved based upon a

prior directive contract).

91 N.Y.2d 554.

Id. at 560.

Id. at 559–60.

Id. at 560.

Specifically, the couple wanted to avoid a “stranger taking [the] decision out of their

hands.” Id. at 567 (“The conclusion that emerges most strikingly from reviewing these consents

as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to

be their joint decision. . . . Even in unforeseen circumstances, even if they were unavailable,

even if they were dead, the consents jointly specified the disposition that would be made.”).

“To the extent possible, it should be the progenitors—not the State and not the courts—

who by their prior directive make this deeply personal life choice.” Id. at 566. J.B. v. M.B. is

another case where the court opined on the value of pre-embryo disposition agreements despite

the absence of one in the case presented. Citing to both Kass and Davis, the New Jersey

Supreme Court in J.B. acknowledged the value of the reasoning behind the enforcement of

predisposition contracts. J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001).

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II. THE PREDISPOSITION CONTRACT IS THE BEST OF THE THREE

JUDICIAL APPROACHES, BUT RAISES SOME CONCERNS ABOUT PROCEDURAL

AND SUBSTANTIVE FAIRNESS

This Note’s proposal that courts deciding disputes about frozen

pre-embryos should enforce a predisposition contract is grounded in

the premise that such agreements are the best of the three approaches.

As the court aptly observed in Kass, explicit agreements are useful in the

commercial context to avoid the costs of litigation.

Their value is even

greater in the noncommercial context of a fertility arrangement where

the emotional costs are enormous.

Added to this benefit is the value of

permitting the spouses themselves to make the uniquely personal

decisions pertaining to their assisted reproductive treatments.

Advance directives also afford a degree of certainty to the medical

provider, which thereby facilitates the effective operation of their IVF

programs.

Thus, a key attribute of the predisposition approach is the

furtherance of parenthood by both supporting those who provide

assisted reproductive therapy and those who seek it.

The constitutional approach, by contrast, provides far less support

in this regard because it is grounded in a misguided definition of

parenthood.

Indeed, the balancing test that is the cornerstone of the

constitutional approach assumes that parenthood is defined by genetics

See Ceala E. Breen-Portnoy, Comment, Frozen Embryo Disposition in Cases of Separation

and Divorce: How Nahmani v. Nahmani and Davis v. Davis Form the Foundation for a

Workable Expansion of Current International Family Planning Regimes, 28 M

D. J. INT’L L. 275,

292 (2013) (“In case of separation or divorce, [a] written agreement would ideally help avoid

many of the issues the courts see today.”); see also Fleming, supra note 12, at 371 (“Enforcing

disposition contracts with clear, specific language is the most efficient and judicious way of

resolving conflicts that arise between parties concerning the disposition of their frozen

embryos.”).

See Kass, 91 N.Y.2d at 565 (acknowledging the value of explicit agreements in a

commercial context).

Id. (recognizing that explicit agreements “are all the more necessary and desirable in

personal matters of reproductive choice, where the intangible costs of any litigation are simply

incalculable”).

Additionally, predisposition agreements maximize reproductive freedom “by reserving to

the progenitors the authority to make what is in the first instance a quintessentially personal,

private decision.” Id.; see also Fleming, supra note 12, at 372 (“Freedom to contract enhances

liberty, even if in the future such agreements impose constraints that one or both parties had

wished to avoid.”).

Fleming, supra note 12, at 372 (“[C]ourts should uphold contracts for the disposition of

frozen embryos because this will provide IVF clinics with certainty as to how they can store and

dispose of embryos.”); see also Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) (addressing

the importance of pre-disposition contracts as giving guidance to “the health care professionals

who administer IVF programs and the scientists who engage in infertility research”).

Angela K. Upchurch, The Deep Freeze: A Critical Examination of the Resolution of Frozen

Embryo Disputes Through the Adversarial Process, 33 F

LA. ST. U. L. REV. 395, 423 (2005).

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alone when weighing the parties’ competing interests in procreating or

not.

Such a myopic notion of parenthood is at odds with the definition

applied in custody disputes where the court considers the closeness of

the relationship that develops between offspring and a mother or father

to determine the best interests of the child.

Moreover, if biology alone

determined parenthood, then support proceedings against genetic

parents would be unnecessary.

Yet these proceedings are routinely

brought in instances where a mere genetic connection is insufficient to

prompt financial support on a voluntary basis.

The constitutional approach is also problematic in its mechanical

application. With one lone exception,

the cases in which courts apply

this approach regularly favor the progenitor who does not want

implantation.

The Davis court

actually held that the spouse seeking

not to procreate ordinarily should prevail in a divorce dispute about the

disposition of frozen pre-embryos unless the other spouse has no other

Davis, 842 S.W.2d at 603 (stating that becoming parents in the genetic sense would have

a “profound impact” on the gamete-providers).

See, e.g., Barstad v. Barstad, 499 N.W.2d 584, 588–89 (N.D. 1993) (determining that the

best interest standard is met by permitting the mother to remain custodial parent because her

continuous and uninterrupted relationship with her son “has been important to [Ryan’s]

development as a happy, well-adjusted child” (citation omitted)). But see Sublett, supra note 37,

at 604 (noting that the factors comprising the best interest test “[c]learly . . . do not apply to

frozen embryos which are not developed enough to have brain activity, let alone wishes or

relationships with others”).

Upchurch, supra note 63, at 423–24.

Id. at 424.

See Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012). In Reber, the husband and the wife

underwent IVF to preserve her ability to conceive a child in light of the chemotherapy she was

to undergo that was expected to hinder her fertility. Id. at 1132. Shortly after the IVF procedure

was completed, the husband filed for divorce and had a biological child with another woman.

Id. at 1133. In the divorce proceeding, the trial court awarded the frozen pre-embryos to the

wife upon finding that her interests in procreating outweighed the husband’s interests to the

contrary. Id. at 1134. In ruling for the wife, the Reber court expressly disagreed with the

decision in Davis, 842 S.W.2d at 604, holding that the possibility of adoption is sufficient to

defeat the interest of the progenitor seeking to use the embryos to procreate. Reber, 42 A.3d at

1138 (“There is no question that the ability to have a biological child and/or be pregnant is a

distinct experience from adoption. Thus, simply because adoption or foster parenting may be

available to Wife, it does not mean that such options should be given equal weight in a

balancing test.”). Notably, the wife testified that she would permit the husband to participate in

raising any child born from the pre-embryos if he wanted that opportunity, and even then

would not expect any financial support from him. Id. at 1140. On these extreme facts, the

appellate court agreed that the balance of interests favored the wife, and sustained the award of

pre-embryos. Id. at 1142; cf. Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 37 (refusing to

apply Reber despite the wife’s infertility following chemotherapy and, instead, holding that the

parties’ prior agreement is the best approach for resolving pre-embryo disputes).

But see Reber, 42 A.3d 1131.

Because of the absence of a predisposition agreement in Davis, the court applied the

constitutional approach to decide the case. Davis, 842 S.W.2d at 598.

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“reasonable possibility” of becoming a parent.

“Reasonable possibility”

is broadly defined to include both a willingness to undergo further IVF

procedures or to adopt.

Thus, the constitutional approach is faulty as

being fully skewed against the spouse seeking to procreate.

The contemporaneous approach is also flawed. Fundamentally, this

approach is unworkable

in a divorce proceeding where, by definition,

the parties have been unable to reach a present agreement about the

disposition of a pre-embryo and, thus, have sought judicial intervention.

Moreover, the contemporaneous approach is practically unsound.

Rather than promote agreement, it effectively fuels the existing

dissension in a divorce proceeding by conferring upon each party the

unilateral power to prevent use of the pre-embryos

and, thereby, to

void a previous disposition agreement that was knowingly and fairly

made. Accordingly, this approach is subject to further criticism as one

that undermines consent

and contravenes pacta sunt servanda.

Thus,

“Ordinarily, the party 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.” Davis, 842 S.W.2d at 604; accord J.B. v. M.B., 783 A.2d 707, 716

(N.J. 2001) (agreeing “with the Tennessee Supreme Court that ‘[o]rdinarily, the party wishing

to avoid procreation should prevail’” (citing Davis, 842 S.W.2d at 604)).

Davis, 842 S.W.2d at 604; see also J.B., 783 A.2d at 717 (observing that the right to

procreate is not lost if the husband, who is otherwise able to have children, loses the

opportunity to use the pre-embryos at issue, whereas the wife’s “fundamental right not to

procreate is irrevocably extinguished if a surrogate mother bears [the divorcing couple’s]

child”).

See Reber, 42 A.3d at 1135 n.5 (criticizing the contemporaneous approach as “totally

unrealistic. If the parties could reach an agreement, they would not be in court”).

See Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 31 (observing that the

contemporaneous mutual consent model “‘give[s] each progenitor a powerful bargaining chip

at a time when individuals might very well be tempted to punish their soon-to-be ex-spouses,’

‘[which] makes no sense and may invite individuals to hold hostage their ex-partner’s ability to

parent a biologically related child in order to punish or to gain other advantages’” (citing Mark

P. Strasser, You Take the Embryos but I Get the House (and the Business): Recent Trends in

Awards Involving Embryos upon Divorce, 57 B

UFF. L. REV. 1159, 1225 (2009))); see also Davis,

842 S.W.2d at 598 (“[The] problem with maintaining the status quo is that the viability of the

pre[-]embryos cannot be guaranteed indefinitely. . . . Thus, the true effect of the intermediate

court’s opinion is to confer on [the party opposing implantation] the inherent power to veto

any transfer of the pre[-]embryos in this case and thus to insure their eventual discard or self-

destruction.”); Shapo, supra note

5, at 103 (“One party’s holdout ‘right’ not to be a parent and

to dispose of pre-embryos becomes a veto—and perhaps a bargaining chip in divorce—over the

other party’s ‘right’ to be a parent.”).

The court in Kass v. Kass noted that the contemporaneous approach effectively

undermines “the seriousness and integrity of the consent process.” 91 N.Y.2d 554, 566 (1998).

The court in that case aptly observed that “[a]dvance agreements as to disposition would have

little purpose if they were enforceable only in the event the parties continued to agree.” Id.

“Pacta sunt servanda” is an expression signifying that agreements in a contract must be

observed. See Pacta sunt servanda, F

REE DICTIONARY, http://legal-

dictionary.thefreedictionary.com/Pacta+Sunt+Servanda (last visited Jan. 4, 2016). As applied,

the doctrine would be the basis for enforcing the original pre-disposition contract where the

party freely agreed to the possibility of a child by donating his sperm or her eggs.

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the contemporaneous approach, like the constitutional balancing test, is

riddled with both theoretical and practical problems, warranting the

conclusion that a predisposition contract is the preferred method for

determining disputes about frozen pre-embryos in a divorce

proceeding.

Notwithstanding that the predisposition approach may be the best

relative choice amongst the three existing legal frameworks, such

contracts are open to criticism both in terms of procedural and

substantive fairness.

The procedural fairness concerns arise because

pre-directives as to unused frozen pre-embryos are contained in long

informed consent forms containing many provisions extraneous to

disposition upon divorce.

Moreover, informed consent forms have

limited options regarding disposition.

These limitations, coupled with

the array of information on the form that is off point to the issue of

disposition upon divorce, cast doubt on whether the parties’ true

intentions, as to unused frozen pre-embryos, are actually reflected.

The concerns about procedural fairness that arise when

dispositional language is contained in an informed consent form are

heightened because such forms are, in essence, a contract between the

spouses as a unit and the medical facility, as opposed to an agreement

between the two progenitors.

As the court in J.B. v. M.B.

recognized,

See Waldman, infra note 120. The concerns about substantive fairness, discussed in

further detail below, center on intervening events that make present enforcement of a

predisposition contract fundamentally unfair.

See, e.g., Cahill v. Cahill, 757 So. 2d 465, 466 (Ala. Civ. App. 2000) (noting that the

consent form was seven pages long); Kass, 91 N.Y.2d at 558 (noting that the language directing

the parties to make dispositional decisions was included in several places within the twelve

page, single-spaced form); Szafranski, 2013 IL App (1st) 122975, ¶ 4 (“Besides outlining the

risks involved with in vitro fertilization, the informed consent states that ‘[n]o use can be made

of these embryos without the consent of both partners.’”); see also J.B. v. M.B., 783 A.2d 707,

719 (N.J. 2001) (“Principles of fairness dictate that agreements provided by a clinic should be

written in plain language, and that a qualified clinic representative should review the terms with

the parties prior to execution.”).

See Cahill, 757 So. 2d at 466 (noting as the pertinent language on disposition a list limited

to five set options).

Cahill is illustrative as a case where doubt exists about whether the parties’ actual intent

is reflected on a consent form. Because the parties did not introduce into evidence the executed

informed consent, the court had nothing but language set forth on a blank form with which to

determine the wife’s application for an award of the pre-embryos. The court was constrained in

its decision and could only conclude that the parties “appear[]” to have determined that the

medical facility would keep the pre-embryos in the event of divorce. Id. at 467.

See J.B., 783 A.2d at 15 (discussing how the lower court granted summary judgment

awarding frozen pre-embryos to the wife after “noting that there was no written contract

memorializing the parties’ intentions” despite the existence of a consent form); see also Fuselier,

supra note 11, at 172 (noting that informed consent forms “represent agreements with the

clinics with respect to actions the clinics should or should not take regarding the pre-embryos

stored there. The contracts are not agreements between the parties themselves”).

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this distinction is important because consent forms may not accurately

reflect the spouses’ genuine intentions regarding the disposition of

frozen pre-embryos. Indeed, the lower court virtually ignored the

consent form in J.B., instead discerning intent from the parties’

certifications that accompanied their respective motions for summary

judgment in the divorce proceeding.

Likewise, the New Jersey

Supreme Court held in this case that the contract the parties entered

into as a unit with the medical facility did not disclose their

unambiguous intentions as to the disposition of the pre-embryos.

honing in on the absence of a discrete contract between the spouses, the

court in J.B. gave credence to the procedural fairness problems that arise

when applying the predisposition approach in a divorce action.

Other courts, however, have focused on the substantive fairness

problems associated with this approach. For example, in Davis, the

court recognized that the intense emotions associated with efforts to

overcome infertility impede true informed consent.

Likewise, the court

in Witten observed that the disposition of frozen pre-embryos is a

matter of such fundamental personal importance that individuals must

be allowed to opt out of their pre-directive contracts at the time of

enforcement.

The Szafranski court concurred that the predisposition

approach largely ignores the fact that intervening events could alter

one’s views of parenthood.

In each of these cases, the court voiced

J.B., 783 A.2d at 711–12, 719; see also A.Z. v. B.Z., 725 N.E.2d 1051, 1056 (Mass. 2000)

(noting the informed consent “does not state, and the record does not indicate, that the

husband and wife intended the consent form to act as a binding agreement between them

should they later disagree as to the disposition” of the pre-embryos).

More specifically, the wife maintained that, at the time of IVF, she and her husband

“agreed to preserve the pre[-]embryos for our use in the context of an intact family.” J.B., 783

A.2d at 710. Thus, she wanted the remaining embryos destroyed. By contrast, the husband

swore that he and his wife “had agreed that no matter what happened the eggs would be either

utilized by us or by other infertile couples.” Id. Thus, he sought an order permitting the

remaining pre-embryos to be donated following his divorce. Id.

Id. at 713 (noting the language in the agreement conditioning the relinquishment of the

frozen pre-embryos to the medical facility unless the court ordered otherwise).

The Davis court acknowledged that informed consent is necessarily impeded as

“anticipating . . . all the turns that events may take as the IVF process unfolds” becomes

impossible. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992). Yet despite this recognition, the

Davis court would permit a modification of the initial contract only if one of the progenitors

has no other reasonable way of becoming a parent, thereby diluting somewhat its concerns

about substantive fairness when applying the predisposition approach. See id. at 604.

See In re Marriage of Witten, 672 N.W.2d 768, 777 (Iowa 2003). As such, the court found

that “individuals are entitled to make decisions consistent with their contemporaneous wishes,

values, and beliefs.” Id.

See Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 19 (stating that the predisposition

approach “ignores the difficulty of predicting one’s future response to life-altering events such

as parenthood” (quoting Witten, 672 N.W.2d at 777)); accord Waldman, infra note 120, at 935

(“Time, relatively unimportant to men, but of crucial importance to women, may work rather

dramatic changes in a woman’s interest in using a particular embryo for reproduction.”).

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concern that the terms of a predisposition contract may no longer be

substantively fair at the time of divorce such that some form of

safeguard is warranted.

This Note posits that courts may resolve this

concern and assure that predisposition contracts are both procedurally

and substantively fair by adhering to the paradigm of prenuptial and

surrogacy agreements.

III.

THE PREDISPOSITION APPROACH SHOULD BE HONED WITH

REFERENCE TO THE PARADIGM OF PRENUPTIAL AND SURROGACY

AGREEMENTS

The paradigm of prenuptial and surrogacy agreements is well-

suited to addressing, if not resolving, the criticisms regarding

procedural and substantive fairness directed at the predisposition

contract in the event of divorce. Under this paradigm, both

voluntariness and intervening events are factors in deciding whether or

not to enforce the prenuptial or surrogacy agreement at issue,

considerations which also may apply to assure that predisposition

contracts are fair.

Prenuptial agreements are also similar to

predisposition agreements in terms of history, concept, and genre.

Such similarities give further credence to the proposition that prenuptial

agreements are a solid and workable model for contracts disposing of

pre-embryos. Likewise, surrogacy agreements are akin to predisposition

agreements in that both pertain to the use of a pre-embryo, albeit in

different factual contexts. The safeguards assuring that surrogacy

contracts are procedurally and substantively fair are, thus, instructive in

the realm of predisposition agreements as well.

See Waldman, infra note 120, at 935 (“Judicial and legislative concern is warranted

because the determination to relinquish reproductive opportunities may be affected and shaken

by life events apart from pregnancy and birth.”).

See infra Parts III–IV.

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A. Both Prenuptial and Surrogacy Agreements Are Analogous to

the Predisposition Contract

1. The Prenuptial and Predisposition Agreements Are

Historically, Conceptually, and Generically Similar

a. Similarities in History Reveal that Predisposition and

Prenuptial Agreements Further the Same Public Policies, such that the

Latter May Be a Logical Paradigm for Implementing the Former

Predisposition contracts are, in the first instance, akin to prenuptial

agreements in that they share a history of reluctant acceptance. Even

though modern prenuptial agreements first appeared in the sixteenth

century and were important enough to be included in the original

Statute of Frauds,

they were void as against public policy in the United

States prior to 1970.

One of the reasons for this long-standing judicial

aversion toward prenuptial agreements was that they were thought to

promote divorce.

Another reason for voiding prenuptial agreements

ab initio

was that they were thought to commercialize marriage and to

emphasize the individual over the couple.

However, as more married women went to work, the judicial trend

changed toward the realization that prenuptial agreements actually

promote marital stability by permitting both spouses to lay out their

expectations and to protect their individually-held assets.

Judith T. Younger, Perspectives on Antenuptial Agreements: An Update, 8 J. AM. ACAD.

MATRIM. LAW. 1, 2 (1992).

In Posner v. Posner, 257 So. 2d 530 (Fla. 1972), the Florida Supreme Court upheld a

prenuptial agreement containing spousal support provisions which had previously been

deemed void as against public policy, thereby initiating the trend toward enforcing such

contracts.

Indeed, escalator clauses under which the amount of property increases upon attaining

certain marriage milestones still may be void ab initio as promoting divorce. See Jonathan E.

Fields, Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for

the Matrimonial Lawyer, 21 J. A

M. ACAD. MATRIM. LAW. 413, 415 (2008) (citing Davis v. Davis,

No. FA 950144807S, 1996 WL 456335 (Conn. Super. Ct., July 29, 1996)).

“Ab initio” is defined as “from the inception.” Ab Initio, FREE DICTIONARY, http://legal-

dictionary.thefreedictionary.com/ab+initio (last visited Jan. 12, 2016).

See Allison A. Marston, Note, Planning for Love: The Politics of Prenuptial Agreements,

49 S

TAN. L. REV. 887, 893–94 (1997).

See, e.g., In re Marriage of Pendleton, 72 Cal. Rptr. 2d 840, 848 (Ct. App. 1998)

(“[P]remarital agreements may in fact encourage rather than discourage marriage. As more

than one court has noted, society’s current acceptance of cohabitation without marriage offers

an attractive alternative to a wealthy man or woman who cannot marry without relinquishing

the right to limit his or her spousal support obligation in the event of divorce.”); Newman v.

Newman, 653 P.2d 728, 732 (Colo. 1982) (“[I]t is reasonable to believe that such planning

brings a greater stability to the marriage relation by protecting the financial expectations of the

parties, and does not necessarily encourage or contribute to dissolution.”).

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Commentators have also observed that prenuptial agreements are on

the rise because the prevalence of divorce and remarriage encourages

couples to plan carefully, independently, and realistically for their

economic future.

The same observation about careful and realistic planning applies

in response to those opposed to enforcing predisposition contracts at

the time of divorce. As with prenuptial agreements, such resistance is

based on public policy, particularly on the notion that prior directives

for disposing of pre-embryos are void ab initio as compelling one

spouse to become a parent against his or her will.

Yet, as with

prenuptial agreements, the public policy that concerns the critics is, in

fact, promoted through judicial recognition and regulation of the

objectionable contracts, rather than leaving them hostage to the extra-

legal regime of the relationship.

Indeed, instead of stifling

procreational freedom, predisposition agreements actually promote this

liberty by allowing the spouses to discuss the options as to unused pre-

embryos and, together, arrive at a cogent expression of their

intentions.

100

This common historical background is the first of several

similarities that make prenuptial agreements a logical paradigm for

addressing concerns about predisposition contracts.

b. Prenuptial and Predisposition Agreements Are Fundamentally

Similar in Concept, Suggesting that the Former Could Be a Paradigm for

the Latter

Prenuptial and predisposition agreements are also conceptually

similar, in that both seek to diminish the state’s involvement in the

marital relationship, notwithstanding that as long ago as 1888, the U.S.

Supreme Court declared marriage to be “a great public institution,

giving character to our whole civil polity.”

101

This characterization as a

“public institution” is the historic basis for state involvement in the

marital relationship.

102

Thus, when a couple marries, they are

Marston, supra note 95, at 891.

See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1058 (Mass. 2000) (stating that “forced

procreation is not an area amenable to judicial enforcement” such that prior directive contracts

violate public policy); J.B. v. M.B., 783 A.2d 707, 718–19 (N.J. 2001) (“[A]greements [that]

compel procreation over the subsequent objection of one of the parties . . . are violative of

public policy.”).

See Litowitz v. Litowitz, 48 P.3d 261, 267 (Wash. 2002) (recognizing that predisposition

contracts “maximize procreative liberty by reserving to the progenitors the authority to make

what is in the first instance a quintessentially personal, private decision.” (quoting Kass v. Kass,

91 N.Y.2d 554, 565 (1998))).

100

Id.

101

See Maynard v. Hill, 125 U.S. 190, 213 (1888) (quoting Noel v. Ewing, 9 Ind. 37, 50

(1857)).

102

Marston, supra note 95, at 902.

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subscribing to an entire set of legal rights and responsibilities as

determined by the state-created “marriage contract.”

103

Terms

pertaining to property distribution in the event of divorce are included

in this contract.

104

The idea of a prenuptial agreement is for the parties to amend the

default provisions of this marriage contract upon dissolution so as to

dictate for themselves the terms of their spousal relationship, should it

come to an end by divorce.

105

The rapid social changes that have

occurred in American family life in recent times, including the

prevalence of divorce and remarriage, justify the opportunity for

spouses to dictate the terms of property distribution upon marital

dissolution.

106

Likewise, the increased usage of IVF supports permitting couples

to dictate the terms by which unused frozen pre-embryos will be

disposed should the marriage end in divorce.

107

As the New Jersey

Supreme Court aptly observed, the law has not kept pace with advances

in medical technology, which have enabled new reproductive

opportunities.

108

The need for such legal principles, however, would be

obviated by virtue of the predisposition contract that, like the prenuptial

agreement, is a means by which the states’ role in a couple’s marriage

may be diminished.

c. Generic Similarities Further Support the Proposition that

Prenuptial Contracts May Be Models for Predisposition Agreements

Prenuptial agreements and predisposition contracts regarding

unused frozen pre-embryos are also generically similar. First, they both

deal with the disposition of property upon divorce. The Uniform

Premarital Agreement Act (UPAA),

109

drafted in 1983 to provide

national consistency to the terms of prenuptial agreements, lists eight

permissible subjects for inclusion in these contracts, six of which deal

with property rights.

110

103

Id. at 901.

104

Id. at 902.

105

Id. at 903 (observing that the states’ willingness to permit such variations “parallels a

trend throughout family law in which private norm creation and decisionmaking have trumped

state-imposed rules”).

106

Id.

107

See supra note 2.

108

See J.B. v. M.B., 783 A.2d 707, 715 (N.J. 2001) (“Advances in medical technology have far

outstripped the development of legal principles to resolve the inevitable disputes arising out of

the new reproductive opportunities now available.”).

109

See UNIF. PREMARITAL AGREEMENT ACT §§ 3(a)(1)–(6) (UNIF. LAW COMM’N 1983).

110

The eight permissible subjects are:

(1) [T]he rights and obligations of each of the parties in any of the property of either

or both of them whenever and wherever acquired or located; (2) the right to buy, sell,

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Similarly, frozen pre-embryos are considered property, albeit

property entitled to “special respect,”

111

a status that the Tennessee

Supreme Court in Davis deemed proper in 1992 when considering

whether pre-embryos should be “persons” for purposes of determining

their disposition. In concluding that pre-embryos are not persons, the

court was guided by the reasoning set forth in Roe v. Wade,

112

whereby

the U.S. Supreme Court held that a fetus has no independent legal

rights.

113

Ultimately, the Davis court concluded that pre-embryos

occupy an interim category in which they are less than a person but

more than mere chattel because of their potential to become human

life.

114

Thus, as with other property to be distributed in accordance with

the terms of a prenuptial agreement, spouses have an ownership interest

in the disposition of pre-embryos, which may be addressed in a contract

between them.

115

Likewise, both prenuptial and predisposition contracts share

temporal similarities, in that both are to be performed, if ever, in the

future.

116

The possibility thus exists in both instances that intervening

use, transfer, exchange, abandon, lease, consume, expend, assign, create a security

interest in, mortgage, encumber, dispose of, or otherwise manage and control

property; (3) the disposition of property upon separation, marital dissolution, death,

or the occurrence or nonoccurrence of any other event; (4) the modification or

elimination of spousal support; (5) the making of a will, trust, or other arrangement

to carry out the provisions of the agreement; (6) the ownership rights in and

disposition of the death benefit from a life insurance policy; (7) the choice of law

governing the construction of the agreement; and (8) any other matter, including

their personal rights and obligations, not in violation of public policy or a statute

imposing a criminal penalty.

Id.

111

See Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992). But cf. Kass v. Kass, 91 N.Y.2d 554,

564–65 (1998) (agreeing that pre-zygotes are not persons, but noting that “for purposes of

resolving the present appeal we have no cause to decide whether the pre-zygotes are entitled to

‘special respect’”).

112

See Roe v. Wade, 410 U.S. 113 (1973); see also Fuselier, supra note 11, at 167 (“There is a

human life component to the pre-embryos—the potential for human life to develop—making

them inherently special. They deserve their own classification.”).

113

Davis, 842 S.W.2d at 595 (citing Roe v. Wade and noting that the Supreme Court

“explicitly refused to hold that the fetus possesses independent rights under law, based upon a

thorough examination of the federal constitution, relevant common law principles, and the lack

of scientific consensus as to when life begins” (footnote omitted)).

114

Id. at 597 (“[P]re[-]embryos 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.”).

115

Id. (“[Spouses] do have an interest in the nature of ownership, to the extent that they

have decision-making authority concerning disposition of the pre[-]embryos, within the scope

of policy set by law.”); see also Reber v. Reiss, 42 A.3d 1131, 1133 (Pa. Super. Ct. 2012) (“The

parties agree, as does the [trial] court, that the pre-embryos are marital property subject to

equitable distribution.”).

116

See Kass, 91 N.Y.2d at 565 (stating that “[a]ll agreements looking to the future to some

extent deal with the unknown,” but adding that “the uncertainties inherent in the IVF process

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events not foreseeable at the time of execution will make enforcement

unfair.

117

The passage of time between execution and enforcement in

both instances gives rise to the need for a heightened standard of review

that assures procedural and substantive fairness to protect against

unconscionable results.

Finally, the two types of contracts have in common the parties—

two spouses who are in a confidential relationship.

118

As such, in each

instance, the parties do not deal at arm’s length, but rather must bargain

with candor, good faith, and sincerity in connection with all matters

regarding the agreement.

119

This duty of candor is particularly

important to the woman, who in each instance is often the

disadvantaged party.

120

Thus, the safeguards that courts impose to

protect against unconscionability when enforcing a prenuptial

agreement should also be considered for their effectiveness in the

context of a predisposition contract pertaining to frozen pre-embryos at

the time of divorce.

2. Predisposition Contracts Can Gain Force from Surrogacy

Agreements, Another Type of Ante-Natal Contract Whose Enforcement

Is Predicated upon Procedural and Substantive Fairness

Surrogacy contracts, like predisposition agreements, deal with the

use of reproductive assistance, though the former pertains to a gestator

itself are vastly complicated by cryopreservation, which extends the viability of pre-zygotes

indefinitely and allows time for minds, and circumstances, to change”).

117

See infra Section III.B.

118

See, e.g., Braddock v. Braddock, 542 P.2d 1060, 1062 (Nev. 1975) (applying Ohio law, the

court stated “[a]n engagement to marry creates a confidential relation between the contracting

parties and an antenuptial contract entered into after the engagement and during its pendency

must be attended by the utmost good faith” (quoting Juhasz v. Juhasz, 16 N.E.2d 328, 331 (Ohio

1938))).

119

Id.

120

See Marston, supra note 95, at 911 (“Because women are often financially or emotionally

disadvantaged in the bargaining process, they contest prenuptials at much greater rates than

men. . . . Regardless of age, empirical data indicate that women generally fare worse than men

in economic negotiations.”); see also Younger, supra note 91, at 19 n.83 (citing cases where

husband had both greater assets and sophistication in business negotiation). Similarly, women

are often the disadvantaged party in a predisposition contract. See Ellen A. Waldman, Disputing

over Embryos: Of Contracts and Consents, 32 A

RIZ. ST. L.J. 897, 928 (2000) (“[D]ispositional

agreements that preclude the unilateral use of embryos in the event of divorce are substantively

skewed against the woman.”). Because men are capable of producing sperm well into their

seventies and women’s ability to produce viable eggs diminishes after age thirty-five, IVF often

occurs in the latter’s reproductive prime with divorce happening in the twilight of her fertile

years. Thus, as with a prenuptial agreement, safeguards must be in place to assure that the

husband has not overreached where the predisposition contract precludes a unilateral award of

the pre-embryos to the wife.

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becoming pregnant with another’s pre-embryo in exchange for a fee.

121

In particular, the gestator agrees in advance of the pregnancy to

relinquish all parental rights to the intended parents.

122

These

agreements take two distinct forms.

123

The first is a Pre-Planned Adoption Agreement, also known as a

Traditional Surrogacy Agreement.

124

This arrangement typically

involves a surrogate donating her ovum and being artificially

inseminated with the sperm from the husband of a couple whose wife is

infertile.

125

Following delivery and the surrogate’s relinquishment of

parental rights, the wife adopts the baby and becomes the legal parent.

The second type, known as a Gestational Surrogacy Agreement, involves

a surrogate who has no biological ties to the resulting baby.

126

Through

IVF, a pre-embryo is created from either the intended father’s sperm

with a donor egg, the intended mother’s egg with donor sperm, or the

egg and sperm from the intended parents.

127

As with predisposition

contracts,

128

both types of surrogacy agreements have impassioned

opponents as well as supporters.

129

121

Roman v. Roman, 193 S.W.3d 40, 49 (Tex. App. 2006) (defining a gestational agreement

as “an agreement between a woman and the intended parents of a child in which the woman

relinquishes all rights as a parent of a child conceived by means of assisted reproduction and

which provides that the intended parents become the parents of the child”); In re Baby, 447

S.W.3d 807, 818 (Tenn. 2014) (defining surrogacy as “[t]he process of carrying and delivering a

child for another person” (quoting Surrogacy, B

LACK’S LAW DICTIONARY (9th ed. 2009)));

Johnson v. Calvert, 851 P.2d 776, 777–78 (Cal. 1993), modified on other grounds by In re C.K.G.,

173 S.W.3d 714 (Tenn. 2005).

122

Roman, 193 S.W.3d at 49.

123

In re Baby, 447 S.W.3d at 818.

124

See id. at 812 (defining the traditional surrogacy contract as one “which involves the

artificial insemination of the surrogate, who, after giving birth, is meant to relinquish the child

to the biological father and the intended mother”).

125

Martha A. Field, Compensated Surrogacy, 89 WASH. L. REV. 1155, 1156 (2014).

126

See In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 1222 (Dist. Ct. App. 1994)

(defining a gestational surrogacy contract as one “where the sperm of the married man is

artificially united with the egg of his wife, and the resulting embryo [is placed] in another

woman’s womb”); see also Browne C. Lewis, Due Date: Enforcing Surrogacy Promises in the Best

Interest of the Child, 87 S

T. JOHN’S L. REV. 899, 900 (2013).

127

See Moschetta, 25 Cal. App. 4th at 1222; see also Lewis, supra note 126, at 902–03.

128

See supra Section III.C.

129

The process [of surrogacy] has evoked much discussion: medical, biological,

sociological, philosophical, psychological, religious, economic, logical, emotional,

and legal. It has been variously characterized by its proponents as, inter alia . . . a “gift

of life” to childless couples, one that . . . implement[s] the principal’s right to obtain a

baby, and one that is sensitive to the needs of infertile couples. . . . The opponents

have characterized surrogacy as, inter alia: the illegal and unconstitutional purchase

and sale of human beings, babies for profit, “rent a womb” . . . and a threat to human

dignity.

James T. Flaherty, Enforcement of Surrogate Mother Contracts: Case Law, the Uniform Acts, and

State and Federal Legislation, 36 C

LEV. ST. L. REV. 223, 224–25 (1988).

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Those opposed to these sorts of ante-natal contracts maintain that

they relegate children to a commodity and, further, that they exploit and

devalue impoverished women.

130

Such critics believe, therefore, the

surrogacy agreements of either type should be void as against public

policy.

131

The New Jersey Supreme Court agreed with those opponents

in its landmark In re Baby M

132

decision invalidating a surrogacy

contract as violating public policy.

133

In other states, the legislatures

have prohibited surrogacy contracts.

134

By contrast, those in favor of surrogacy agreements counter that a

woman should have the freedom to contract for the use of her own

body, including in instances where doing so is for economic gain.

135

Furthermore, supporters arguing from the perspective of the intended

parents maintain that banning surrogacy contracts is akin to interfering

with the right to procreate.

136

Thus, they maintain that surrogacy

arrangements enjoy constitutional protection.

137

In light of this fervent and ongoing debate, surrogacy contracts are

scrutinized for procedural and substantive safeguards in the states

where they are permitted.

138

Such scrutiny is instructive in the realm of

predisposition contracts as demonstrating that ante-natal agreements

are an effective model, provided they are fair.

B. Safeguards to Assure Procedural Fairness in the Realm of

Prenuptial and Surrogacy Agreements Would Also Address the Concerns

About Predisposition Contracts Pertaining to Frozen Pre-Embryos

To protect against the risk of overreaching and unconscionable

results, prenuptial and surrogacy agreements must be both procedurally

130

Lewis, supra note 126, at 923, 940. In actuality, this concern may be misguided as “based

upon the erroneous perception that surrogates are poor, uneducated women who are preyed

upon by wealthy, infertile couples. Research indicates that the average surrogate is a middle-

income, educated woman who has had other children.” Id. at 923.

131

See supra note 129.

132

In re Baby M, 537 A.2d 1227 (N.J. 1988).

133

Id. at 411 (“We find the payment of money to a ‘surrogate’ mother illegal, perhaps

criminal, and potentially degrading to women.”); see also Richard F. Storrow, New Thinking on

Commercial Surrogacy, 88 I

ND. L.J. 1281, 1281 (2013) (“[J]urisdictions that prohibit surrogacy

view it as per se exploitative and as inappropriately commodifying human reproduction . . . .”).

134

See, e.g., MICH. COMP. LAWS ANN. §§ 722.851–.863 (West 2011) (voiding surrogacy

contracts and imposing criminal penalties).

135

Field, supra note 125, at 1172 (asking the rhetorical question: “When an intelligent

woman consents to such a relationship, why should she be unable to bind herself by her

promise because others feel that the arrangement exploits her?”).

136

Id. at 1178.

137

Id. at 1177–78.

138

See infra Sections III.B.2, III.C.2.

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and substantively fair.

139

Legislatures and courts have often blurred

these two aspects of fairness as they are closely related.

140

Nonetheless,

both aspects of fairness serve to assure that prenuptial and surrogacy

agreements are properly enforceable. The safeguards such fairness

requirements provide in the context of these agreements would also

resolve the concerns critics have voiced about divorce courts deciding

pre-embryo disputes through the enforcement of a predisposition

contract.

141

1. Procedural Fairness in the Context of Prenuptial Agreements

Requires Voluntariness and Full Disclosure of Finances

Procedural fairness seeks to assure that the bargaining process is

free of coerciveness and other defects that suggest one party did not

make an intended choice such that the resulting agreement would be

unenforceable.

142

In Gant v. Gant,

143

the court bluntly recognized that

parties to a prenuptial agreement are often mismatched in terms of

bargaining power.

144

Thus, procedural fairness in that context requires

that the agreement be entered into voluntarily, after both sides have

fully disclosed their finances to the other.

145

A prenuptial agreement

meeting these criteria is fairly procured.

146

The relevant period of

judicial review is the time the agreement was executed.

147

The inquiry into voluntariness in this regard exceeds that

undertaken in the commercial context for fraud, overreaching, or sharp

139

Younger, supra note 91, at 7, 18.

140

Id. at 18 (“If the substantive terms of an agreement seem fair to the reviewing court,

operating with or without statutory guidance, procedural niceties become less important.

Conversely, if the agreement seems unfair, the procedures surrounding its execution become

more important.”); see also Waldman, supra note 120, at 927 (“Commentators and courts have

suggested that, in practice, the two elements of unconscionability are measured according to a

sliding scale. A grotesquely one-sided contract might be voided with only a slight showing of

procedural defectiveness. Conversely, clear defects in the bargaining process might be sufficient

to nullify a contract whose terms, though problematic, cannot be said to ‘shock the

conscience.’” (footnote omitted)).

141

See infra Part IV.

142

Waldman, supra note 120, at 926.

143

329 S.E.2d 106 (W. Va. 1985), overruled by Ware v. Ware, 687 S.E.2d 382 (W. Va. 2009).

However, the proposition that parties to a prenuptial agreement often have unequal bargaining

power remains true.

144

Id. at 114 (“[C]andor compels us to raise to a conscious level the fact that, as in this case,

prenuptial agreements will almost always be entered into between people with property or an

income potential to protect on one side and people who are impecunious on the other.”).

145

Younger, supra note 91, at 19.

146

Id. at 18.

147

Id.

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dealing.

148

In the context of a prenuptial agreement, voluntariness also

considers such factors as the parties’ sophistication in worldly affairs,

the timing of the execution relative to the wedding, and the opportunity

to seek independent counsel.

149

Notably, the retention of independent counsel is not a decisive

criterion for determining voluntariness and, thus, procedural fairness.

150

Rather, the key concern from both the legislative and judicial

perspective is whether the party challenging the prenuptial agreement

had an opportunity to seek legal advice.

151

The 2012 Uniform Premarital

and Marital Agreement Act (UPMAA)

152

evinces this concern in section

9, which states in relevant part that a premarital agreement is

unenforceable if a party against whom enforcement is sought did not

have access to independent legal counsel.

153

Some courts, likewise, do not require the actual advice of legal

counsel in order to find a prenuptial agreement being challenged as

procedurally unfair nonetheless enforceable. In Pajak v. Pajak,

154

the

court upheld a prenuptial agreement that the wife argued was not fairly

procured due to her not having had legal counsel.

155

Notably, the court

reasoned that independent advice from an attorney is not a requirement

for enforcing a prenuptial agreement when the terms are

comprehensible to a reasonably intelligent adult.

156

Under such

circumstances, the contract at issue was procedurally fair.

157

In addition to voluntariness, procedural fairness in the realm of a

prenuptial agreement requires that the parties candidly disclose their

finances to each other prior to execution.

158

The requirement of

financial disclosure is closely related to voluntariness and, indeed, flows

148

Id. at 19–20.

149

See Norris v. Norris, 419 A.2d 982, 985 (D.C. 1980); Simeone v. Simeone, 581 A.2d 162,

167 (Pa. 1990).

150

See, e.g., UNIF. PREMARITAL & MARITAL AGREEMENT ACT § 9(a)(2) (UNIF. LAW COMM’N

2012).

151

Id.; see also Younger, supra note 91, at 22.

152

UNIF. PREMARITAL & MARITAL AGREEMENT ACT § 9(a)(2).

153

Id.

154

Pajak v. Pajak, 385 S.E.2d 384 (W. Va. 1989).

155

Id. at 388–89; see also In re Estate of Baker, 207 S.W.3d 254, 267 (Tenn. Ct. App. 2006)

(“[S]ome states hold that the presence or absence of independent counsel is just another factor

to be considered when determining if the agreement was entered into knowledgeably.”).

156

See Pajak, 385 S.E.2d at 388–89 (“[A]dvice of independent counsel at the time parties

enter into a pre-nuptial agreement helps demonstrate that there has been no fraud, duress or

misrepresentation, and that the agreement was entered into knowledgeably and voluntarily,

[but] such independent advice of counsel is not a prerequisite to enforceability when the terms

of the agreement are understandable to a reasonably intelligent adult and both parties have had

the opportunity to consult with independent counsel.”); see also In re Estate of Baker, 207

S.W.3d at 267–70.

157

See generally Younger, supra note 91, at 26.

158

Id. at 24–27.

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from the nature of prenuptial agreements themselves.

159

These

agreements either waive or modify marital property rights, the value of

which derives from the spouses’ assets.

160

The waiver of all or any

portion of such rights cannot be voluntary, and thus cannot be fairly

procured, absent full financial disclosure prior to execution.

161

The extent of the required disclosure varies from case to case

depending on several factors. Among these is the parties’ relative

worldliness.

162

Some courts require the more sophisticated party to a

prenuptial agreement to inform the prospective spouse as to the rights

being waived.

163

Likewise, the existence of a disproportional provision

164

is another factor that some courts consider when determining fair

procurement, leading to a presumption that disclosure may have been

insufficient in such instance.

165

The variety and degree of factors that

courts contemplate prompts the conclusion that procedural fairness in

the context of a prenuptial agreement requires enough disclosure so that

each contracting party has a clear idea of the other’s property and

resources. Those parties that do will have entered into a fairly procured

prenuptial agreement that is both voluntary and grounded upon candid

communication underlying the parties’ true intentions.

2. Surrogacy Contracts Are Procedurally Fair if the Parties Have

Had the Opportunity to Seek Independent Counsel, Compensation Is

Reasonable, and the Gestator Has the Right to Rescind Following

Delivery

A key criterion for determining whether a surrogacy contract is

procedurally fair corresponds to one of the main safeguards considered

159

Id.

160

Id.

161

Id.

162

See, e.g., Kosik v. George, 452 P.2d 560, 563–64 (Or. 1969) (requiring husband with

business savvy to fully inform wife of the rights she was forfeiting under the prenuptial

agreement); cf. Hengel v. Hengel, 365 N.W.2d 16, 20 (Wis. Ct. App. 1985) (finding that wife

who had moderate sophistication in financial matters need only be provided with information

to enable “a general and approximate knowledge” of husband’s property).

163

Kosik, 452 P.2d at 563–64.

164

A disproportional provision is a contractual term that favors one party over the other.

165

See, e.g., Schmidt v. Schmidt, 9 Va. Cir. 273, 278 (Cir. Ct. 1987) (discussing Batleman v.

Rubin, 98 S.E.2d 519 (Va. 1957)) (raising presumption that husband did not provide full and

frank disclosure prior to executing prenuptial agreement where wife agreed to accept a sum less

than a third of the value of his property); Friedlander v. Friedlander, 494 P.2d 208, 213 (Wash.

1972) (en banc) (“Where a pre-nuptial contract makes provision for a wife that is

disproportionate to the means of the intended husband, it casts a burden upon the intended

husband, and those claiming under him, to prove that she had full knowledge of all the facts

and circumstances that materially affected the contract.”).

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in the realm of prenuptial agreements: voluntariness.

166

As in the

domain of prenuptial agreements, procedural fairness in the realm of

surrogacy arrangements includes the opportunity to seek legal advice.

167

Other aspects of the procedural fairness inquiry aim to assure that the

surrogate is not coerced into the ante-natal agreement. Such safeguards

are akin to those intended to protect the disadvantaged party

168

in a

prenuptial agreement, which protections this Note argues pertain to

predisposition contracts as well.

169

Two such safeguards in favor of the surrogate relate to

compensation and to the opportunity to rescind the agreement

relinquishing parental rights.

170

To assure that the surrogacy contract is

truly voluntary and not the result of intended parents exploiting a

gestator in financial need, some states prohibit the former from paying

anything to the latter,

171

whereas in other states the amount of

compensation is limited.

172

Other than payment for reasonable expenses

attendant with the pregnancy, no bonus or supplement of any kind is

permitted.

173

Where compensation is permitted, it may not be

contingent upon actually surrendering the child, as the surrogate must

have the option to rescind her promise to terminate parental rights.

174

Indeed, the opportunity to exercise that termination right post-

delivery is another procedural safeguard that some courts apply to

assure voluntariness.

175

In A.H.W. v. G.H.B.,

176

plaintiffs were intended

166

See supra Section III.B.1; see also Roman v. Roman, 193 S.W.3d 40, 49 (Tex. App. 2006)

(“To validate a gestational agreement, the court must find . . . that each party to the agreement

voluntarily entered into and understood the terms of the agreement.”).

167

See, e.g., FLA. STAT. ANN. § 63.213(4) (West 2012) (requiring the parties to a surrogacy

contract to have independent counsel); Adoption of Matthew B., 284 Cal. Rptr. 18, 28 (Ct. App.

1991) (enforcing agreement where the surrogate had independent legal counsel to protect her

interests and to assure that the arrangement was knowing and voluntary).

168

See supra note 120.

169

See infra Part IV.

170

See infra notes 171–174.

171

See, e.g., WASH. REV. CODE ANN. § 26.26.240 (West 2016) (providing that surrogate

parentage contracts, whether executed in Washington or elsewhere, that provide for

compensation are void as against public policy and unenforceable in the State of Washington).

172

See, e.g., FLA. STAT. ANN. § 63.213(f) (limiting payment to reasonable legal and medical

fees, living expenses, lost wages, and compensation for the medical risk); In re Baby, 447 S.W.3d

807, 826–27 (Tenn. 2014) (noting that compensation provisions will be enforced only to the

extent they pertain to expenses inherent in the surrogacy process itself).

173

See, e.g., FLA. STAT. ANN. § 63.213(f) (“[N]o other compensation, whether in cash or in

kind, shall be made pursuant to a preplanned adoption arrangement.”).

174

See, e.g., In re Baby, 447 S.W.3d at 826 (“[C]ompensation to a traditional surrogate

should not be contingent upon her surrender of the child or the termination of her parental

rights.”).

175

See, e.g., FLA. STAT. ANN. § 63.213(1)(b) (providing surrogate mother with forty-eight

hours after delivery to revoke consent to adoption if the child is genetically related to her); see

also In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 1235 (Ct. App. 1994) (“[T]here

is . . . no doubt that enforcement of a surrogacy contract prior to a child’s birth presents a host

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parents who entered into a gestational surrogacy contract pursuant to

which defendant family member agreed to be implanted with their

embryo.

177

Prior to defendant’s due date, plaintiffs commenced a

proceeding for an order declaring themselves the unborn child’s legal

mother and father.

178

Though the surrogate did not oppose plaintiffs’

requested relief,

179

the court nonetheless denied the petition,

emphasizing the right to rescind as a key aspect of procedural

fairness.

180

Specifically, the court emphasized the emotional and biological

changes that occur during pregnancy,

181

as well as the bond that is

created between a surrogate and the baby she carries.

182

In recognition

of this bond, the court would not allow the surrogacy contract to be

used as a mechanism through which to coerce a gestator

183

into

relinquishing her parental rights

184

via a pre-delivery order that directs

the intended parents to be listed on the birth certificate. The court

instead required the parties to abide by a seventy-two hour waiting

period following delivery, thereby enforcing the surrogacy contract in a

manner that respected the parties’ intentions, albeit with procedural

safeguards.

185

Accordingly, some sound precedent exists to illustrate

of thorny legal problems, particularly if such contracts were specifically enforced.”); In re Baby,

447 S.W.3d at 834 (vacating consent order issued pre-delivery based on the State’s “statutory

procedures [that] unequivocally prohibit the voluntary relinquishment of a biological birth

mother’s parental rights prior to birth through either surrender or parental consent to

adoption”).

176

A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. Ct. Ch. Div. 2000).

177

Id. at 949–50.

178

Id.

179

Id. at 949.

180

Id. at 954.

181

Id.

182

Specifically, the court stated:

A bond is created between a gestational mother and the baby she carries in her womb

for nine months. During the pregnancy, the fetus relies on the gestational mother for

a myriad of contributions. A gestational mother’s endocrine system determines the

timing, amount and components of hormones that affect the fetus. The absence of

any component at its appropriate time will irreversibly alter the life, mental capacity,

appearance, susceptibility to disease and structure of the fetus forever.

Id. at 953.

183

See id. at 954 (“A court order for the pre-birth termination of the pregnant defendant’s

parental rights is the equivalent of making her subject to a binding agreement to surrender the

child . . . .”).

184

See id. (“It is not necessary now to determine what parental rights, if any, the gestational

mother may have vis-á-vis the newborn infant. That decision will have to be made if and when

a gestational mother attempts to keep the infant after birth in violation of the prior

agreement.”).

185

See id. (acknowledging that the “parties’ detailed fifteen page agreement clearly reflects

their shared intent and desired outcome for this case” and allowing them “to the maximum

extent possible, the relief requested”). Thus, the court directed the attending physician who

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how one form of ante-natal contract, that is, the surrogacy agreement,

can be utilized and enforced so that matters of reproductive choice

remain with the affected parties.

C. Substantive Fairness Protections as Applied to Prenuptial and

Surrogacy Agreements Could, Likewise, Pertain to Predisposition

Contracts

Such precedent is not limited to procedural fairness, but exists in

the realm of substantive concerns as well. Substantive unconscionability

considers whether the actual terms of a contract unreasonably favor one

of the parties so as to be shockingly unfair.

186

1. Substantive Fairness in the Realm of Prenuptial Agreements

Focuses on Unforeseen Developments that Would Cause Hardship

Courts are divided as to the temporal framework for measuring

substantive fairness in the context of prenuptial agreements, with some

looking at the time of execution, some at the time of enforcement, and

some at both.

187

The primary benefit to measuring the substantive

fairness of a prenuptial agreement at the time of execution is that the

parties’ freedom to contract receives maximum respect.

188

Yet, limiting

review to the time of execution forecloses consideration of unforeseen

intervening events that render previously reasonable provisions

substantively unfair and inequitable at the time of enforcement.

189

Thus,

courts review prenuptial agreements for substantive fairness at the time

of enforcement not to rewrite the parties’ bargain, but to avoid the

hardship and significant financial problems that would otherwise ensue

due to unforeseen developments in the marriage since execution.

190

delivered the baby to wait seventy-two hours before preparing the Certificate of Parentage,

noting “[t]his solution represents a modification of the agreement between the parties to the

least extent necessary.” Id.

186

Waldman, supra note 120, at 927 n.174 (“A substantively unconscionable contract is one

that no sensible man would make and such as no honest and fair man would accept.” (quoting

Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078, 1087 (Ind. 1993), abrogated by

Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947 (Ind. 2005))).

187

Younger, supra note 91, at 29.

188

See, e.g., McKee-Johnson v. Johnson, 444 N.W.2d 259, 266 (Minn. 1989), overruled by In

re Estate of Kinney, 733 N.W.2d 118 (Minn. 2007) (“Many jurisdictions, perhaps a majority,

have opted for a time of execution review, prompted, undoubtedly, by concerns relative to

freedom of contract between consenting adults.”).

189

Younger, supra note 91, at 7–8.

190

Id. at 18.

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The judicial emphasis is on unforeseen developments that cause

the hardship rather than on the hardship itself. For example, in Pajak,

both spouses had children from previous marriages, and the husband

had independent wealth.

191

The day before their wedding, plaintiff-

husband asked that defendant-wife sign a prenuptial agreement waiving

all her rights to inherit under his will.

192

Following the husband’s death,

the wife sought to void the agreement on grounds of substantive

fairness.

193

The court rejected her challenge, finding that the waiver was

part of a typical prenuptial agreement, often included where spouses

seek to protect the inheritance rights of children from a previous

marriage.

194

Thus, nothing about the agreement was unforeseen so as to

prevent its enforcement on substantive fairness grounds.

Newman v. Newman

195

is another case where the court denied the

wife’s request to void a waiver of maintenance at the time of

enforcement upon finding that intervening circumstances were not

unforeseen. On the contrary, at the time the prenuptial agreement was

executed, the parties contemplated that the wife would complete her

education so that she could work as an accountant, which is exactly

what transpired.

196

Thus, even though the husband had considerable

wealth and the wife was earning only $1500 per month at the time of

their divorce, the court did not find the maintenance waiver to be

unconscionable, because the parties’ expectations during the marriage

had been met.

197

By contrast, in Martin v. Farber,

198

the court was influenced by the

wife’s disingenuity during the forty-four year marriage and decided to

impose a constructive trust on the wife’s property in favor of her

husband, notwithstanding the fact that the husband had waived his right

to all the wife’s property acquired before and during the marriage in a

prenuptial agreement. Throughout their marriage, the husband was the

sole wage earner, consistently turning over money to the wife who, in

turn, promised to take care of him with those funds.

199

Instead, she used

191

Pajak v. Pajak, 385 S.E.2d 384, 387 (W. Va. 1989).

192

Id. at 385.

193

The court was not persuaded by wife’s argument that the prenuptial agreement was

procedurally unfair, finding that “there is no evidence that [the husband] was at all secretive or

in any way misled [the wife].” Id. at 388.

194

Id. at 387–88 (observing that the provision was part of “a traditional pre-nuptial

agreement designed to protect the inheritance rights of children from claims made by a new

wife who is not the children’s mother”).

195

Newman v. Newman, 653 P.2d 728 (Colo. 1982) (en banc).

196

Id. at 736.

197

Id.

198

Martin v. Farber, 510 A.2d 608 (Md. Ct. Spec. App. 1986).

199

Id. at 612.

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the money to acquire assets in her own name.

200

The court recognized

the substantive unfairness that would result to the husband if it were to

enforce the prenuptial agreement in light of the wife’s unexpected

intervening bad behavior.

201

Thus, the court imposed a constructive

trust in favor of the husband on assets in the wife’s estate that could be

traced back to being purchased with money he provided.

202

In this

manner, the court assured substantive fairness by protecting against

unforeseen developments that would have made enforcement of the

original contract shockingly unfair.

2. The Ramifications of Intervening Events Are Likewise a Key

Factor for Courts in Determining Whether a Surrogacy Contract Is

Substantively Fair

As with prenuptial agreements, intervening events are relevant to

courts determining whether a challenged surrogacy agreement is

substantively fair.

203

In a case involving breach of such a contract,

relevant changed circumstances include those that impact either the

surrogate’s consent or the environment into which the child will be

placed.

204

A deterioration in the relationship during the pregnancy

between the surrogate and the intended parents is an example of an

intervening event that affects informed consent to the extent a provision

in the gestational contract permitting the surrogate to remain a part of

the child’s life is frustrated.

205

Likewise, the surrogate’s purpose to

surrender the child to an intact family might be frustrated if the

intended parents have separated or are no longer able to provide for the

child financially.

206

Thus, to assure that a surrogacy contract is substantively fair in

light of intervening events, some courts will not automatically accept the

parties’ predetermined conclusion that the best interests of the child are

200

Id.

201

Id.

202

Id.; see also Gross v. Gross, 464 N.E.2d 500 (Ohio 1984) (finding an alimony provision by

which maximum payment to wife was $200 per month unconscionable at enforcement, as this

amount would result in an extreme lifestyle change from the unforeseeable opulent standard of

living during the marriage).

203

Lewis, supra note 126, at 948 (“In a surrogacy contract dispute, the only changed

circumstances that are relevant are those that impact the surrogate’s ability to give informed

consent and the child’s opportunity to be placed in the best living environment.”).

204

Id.

205

Id.

206

See id.; see also In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 1223 (Ct. App. 1994)

(discussing how the traditional surrogate began to reconsider the adoption post-delivery after

learning while in labor that the intended parents had separated).

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furthered by placement with the intended parents.

207

Rather, these

courts conduct a de novo review,

208

using the provisions of the parental

scheme in the surrogacy contract as a guide for determining the child’s

best interests.

209

In this way, maximum effect is given to the parties’

intentions by enforcing a surrogacy arrangement as agreed, provided

that intervening events have not resulted in circumstances that require

modification to assure substantive fairness.

210

To the extent this model

has succeeded in the realm of some form of ante-natal contract, that is,

both the prenuptial and surrogacy agreements, one has reason for

encouragement that such a scheme befits another form of ante-natal

contract, that is, those pertaining to disposition of frozen pre-embryos.

IV.

PROPOSAL

A. Predisposition Contracts Should Be Separate from Informed

Consent Forms to Assure Procedural Fairness

Courts tasked with deciding whether or not to enforce a

predisposition contract in a divorce proceeding should assure

procedural fairness with reference to the safeguards of full disclosure

and voluntariness required to enforce a prenuptial or surrogacy

agreement. To assure that directives pertaining to a frozen pre-embryo

are based on full disclosure, courts should require that these provisions

be set forth in an agreement that is separate and distinct from the form

that the medical provider uses to obtain informed consent prior to IVF.

One option for creating such a contract is to provide for

disposition of pre-embryos in the prenuptial agreement itself. The

courts have not yet squarely addressed whether such a provision would

be valid.

211

However, both the UPAA and UPMAA support this

207

See In re Baby, 447 S.W.3d 807, 828 (Tenn. 2014) (“[C]ourts are not bound by any

surrogacy contract as to the determination of the best interests of a child.”).

208

Indeed, such review is not necessarily limited to instances where one party opts not to

perform a gestational contract post-delivery. Some states require the court validation of a

surrogacy contract as a condition precedent to the adoption. See, e.g., U

TAH CODE ANN.

§§ 78B-15-801(4), -803 (West 2009).

209

See, e.g., In re Baby, 447 S.W.3d at 829 (“In most instances, enforcing the parenting

scheme as provided by a surrogacy contract will support the best interests of the child.”); In re

F.T.R., 2013 WI 66, ¶ 61, 349 Wis. 2d 84, 116, 833 N.W.2d 634, 649–50 (“Enforcement of

surrogacy agreements promotes stability and permanence in family relationships because it

allows the intended parents to plan for the arrival of their child . . . and reduces contentious

litigation that could drag on for the first several years of the child’s life.”).

210

See supra Section III.C.2.

211

In Dahl v. Angle, 194 P.3d 834, 840 (Or. Ct. App. 2008), however, the court recognized

the congruence of these two contracts, stating that “giving effect to a valid agreement evincing

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possibility by allowing the parties to determine any personal right, so

long as their arrangement does not violate public policy.

212

Thus,

provisions as to frozen pre-embryos in a prenuptial agreement would

comport with both these Acts, as some courts have recognized that

predisposition contracts actually promote public policy in favor of

procreative liberty.

213

Furthermore, including provisions for disposition of frozen pre-

embryos is consistent with the aim of a prenuptial agreement to

determine the parties’ rights and obligations in property no matter

where located or how acquired.

214

In light of the case law confirming

that pre-embryos are property, albeit entitled to “special respect,”

215

providing for their disposition along with other types of ownership

interests upon divorce appears reasonable.

216

The fact that provisions in a prenuptial agreement limiting child

support, visitation, and custody rights are void

217

should not impede

inclusion of predisposition arrangements, as pre-embryos are

distinguishable from live children. As the court in Davis reviewed, a

four- to eight-cell pre-embryo is far removed, both quantitatively and

the parties’ intent regarding disposition of embryos is consistent with our statutory and case

law that give similar effect to prenuptial agreements.”

212

See, e.g., UNIF. PREMARITAL AGREEMENT ACT § 3(a)(6) (UNIF. LAW COMM’N 1983); see

also U

NIF. PREMARITAL & MARITAL AGREEMENT ACT § 10 cmt. (UNIF. LAW COMM’N 2012)

(“[O]ther provisions which are contrary to public policy would also be unenforceable.”). The

National Conference of Commissioners for Uniform State Laws, also known as the Uniform

Law Commission, drafted both the UPAA and the UPMAA. This Commission provides states

with non-partisan legislation to bring stability to important areas of state statutory law. The

UPAA has been adopted by twenty-six jurisdictions, half of which made significant changes.

The Commission passed the UPMAA in 2012 to address some of the concerns with the UPAA.

To date, only Colorado and North Carolina have adopted the UPMAA, though the Act is

pending consideration in Mississippi. See Premarital and Marital Agreements Act, U

NIF. LAW

COMM’N, http://www.uniformlaws.org/Act.aspx?title=Premarital%20and%20Marital%

20Agreements%20Act (last visited Apr. 9, 2017).

213

See, e.g., Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) (noting that procreative liberty

is furthered by leaving full authority to the progenitors to decide the fate of frozen pre-embryos

based on privately held convictions about self-identifying as a genetic parent, and the point at

which life begins).

214

See UNIF. PREMARITAL AGREEMENT ACT § 3(a)(1) (noting that prenuptial agreements

aim to address “the rights and obligations of each of the parties in any of the property of either

or both of them whenever and wherever acquired or located”); see also U

NIF. PREMARITAL &

MARITAL AGREEMENT ACT § 2(6) (defining property as “anything that may be the subject of

ownership”).

215

See Davis, 842 S.W.2d at 597.

216

See also Sublett, supra note 37, at 596 (“Because the sperm and egg have united to

become one, the resulting concept cannot be said to be the personal property of either the male

or the female, but rather the marital property of both.”).

217

See, e.g., UNIF. PREMARITAL & MARITAL AGREEMENT ACT § 10(b) (providing that a term

in a premarital agreement is unenforceable “to the extent that it: (1) adversely affects a child’s

right to support”); see also Reber v. Reiss, 42 A.3d 1131, 1141 (Pa. Super. Ct. 2012) (questioning

whether a party to a predisposition contract can waive support for the future child).

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qualitatively, from viability—the point at which a fetus is assigned legal

rights.

218

Accordingly, provisions for the disposition of pre-embryos

would be consistent both with what a prenuptial agreement intends to

include, as well as with what it seeks to exclude.

Whether or not a couple about to marry will want to include a

provision that speaks to infertility in a pre-nuptial agreement is, of

course, debatable. The key point, however, is that such a provision could

be included in a prenuptial agreement if the parties so choose, and

would likely be enforced as within a procedurally and substantively fair

contract.

Removing the disposition language from the consent form and into

an agreement of its own, be it a prenuptial agreement or a contract

made at the time of IVF, will focus the spouses on the issue of unused

pre-embryos. Such focus will, thereby, foster the private discussion that

is needed in order to make a knowing contingency plan in the event of

divorce.

219

In particular, the spouses would have the opportunity to

communicate candidly with each other and share their respective

feelings about the genetic connection to a child they might not raise, the

inception of life, and raising a child in a family that is not intact.

220

Full

disclosure and contemplation of these issues would obviate the criticism

that predisposition contracts may not reflect the spouses’ actual

intentions,

221

as procedural safeguards would be in place to assure the

terms were based upon frank information. Concomitantly, removing

the dispositional language from the informed consent realm would

assure voluntariness that is otherwise questionable in contracts set forth

on a standardized form, presented on a take-it-or-leave-it basis, and

with key provisions hidden in the fine print.

222

218

Davis, 842 S.W.2d at 595 (stating viability is the critical point for assigning legal rights to

a fetus, and “[t]hat stage of fetal developmental is far removed, both qualitatively and

quantitatively, from that of the four-to eight-cell pre[-]embryos in this case”).

219

But see Kass v. Kass, 91 N.Y.2d 554, 566 (1998) (recognizing that neither party disputed

that the consent form was “an expression of their own intent regarding disposition of their pre-

zygotes,” nor did they dispute that their agreement was “freely and knowingly made”).

220

See Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 41 (reasoning that its decision to

honor a predisposition agreement will “promote serious discussions between the parties prior

to participating in in vitro fertilization regarding their desires, intentions, and concerns”). Such

discussion could also include disposition preferences should one party have a change of heart

about parenthood due to future intervening events. Id. (“[T]he concern that individuals may

change their minds regarding parenthood . . . [and] not[ing] that this concern can be

adequately addressed in a contract and should be discussed in advance of the procedure.”).

221

See supra Section I.B.; see also Fleming, supra note 12, at 372 (“The process of executing a

contractual agreement to regulate future control of frozen embryos may also have the added

benefit of causing the parties to pause, think, and recognize the importance of the commitment

into which they are about to enter.”).

222

Waldman, supra note 120, at 926 (citing Res. Mgmt. Co. v. Weston Ranch, 706 P.2d

1028, 1042 (Utah 1985) (listing the hallmarks of procedural unconscionability as: the use of

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Furthermore, courts should enforce a predisposition contract in

instances where the divorcing spouses have had the opportunity to seek

independent counsel. While retaining separate counsel may seem

misplaced as between a married couple endeavoring to start a family,

courts should at a minimum confirm that the parties have had the

chance to speak with an attorney for guidance about the dispositional

choices in the event of divorce. Adapting this safeguard to the formation

of predisposition contracts would assure that the preferred approach

223

for resolving disputes about the fate of frozen pre-embryos in a divorce

proceeding is procedurally fair.

B. Predisposition Contracts Should Consider Biological Realities to

Assure Substantive Fairness

As applied to predisposition contracts, courts may need to shift

their focus from unforeseen intervening circumstances to the biological

realities attendant with IVF to determine substantive fairness. As the

Davis court recognized, the possibility is quite real that one of the

parties participating in IVF may have no other reasonable means to

achieve genetic parenthood absent an award of the frozen pre-embryos

at the time of divorce.

224

Because men are physically able to procreate

longer than women, the wife in a divorce dispute about frozen pre-

embryos is more likely to be the spouse at risk of losing the chance to

become a biological parent.

225

Yet, if the predisposition contract is fairly procured,

226

the parties

will have discussed the physical realities that hinder the woman absent

the option of being awarded the frozen pre-embryos on a unilateral

basis. Indeed, such discussion would address concerns about future

parenthood and, thereby, obviate the criticism that the predisposition

approach fails to provide spouses with the opportunity to address this

topic.

227

Perhaps the courts would no longer need to consider the

boilerplate forms, offered on an as-is basis, and burying key terms in a morass of small print));

see also supra Section III.C.; supra note 78.

223

See supra Section I.B.

224

Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992); see also J.B. v. M.B., 783 A.2d 707, 720

(N.J. 2001) (specifically expressing “no opinion in respect of a case in which a party who has

become infertile seeks use of stored pre[-]embryos against the wishes of his or her partner”);

Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012); supra note 49.

225

Waldman, supra note 120, at 928.

226

See supra Section IV.A.

227

See supra Parts II–III; see also Fleming, supra note 12, at 372 (“[C]hanged circumstances

in embryo dispute cases are no different from the changed circumstances that could occur in

many other contractual situations that do not render contracts unenforceable. Therefore,

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applicability of the Davis exception

228

if the parties themselves enter into

a predisposition contract following their discussion that cryopreserved

pre-embryos might be the wife’s last chance to become a genetic parent.

A woman’s choice to forgo use of her own pre-embryos is not troubling

so long as such choice is procedurally and substantively fair.

229

Courts

should, therefore, enforce a predisposition agreement between divorcing

spouses that meets these fairness standards.

ONCLUSION

Predisposition agreements are the best model for determining the

fate of frozen pre-embryos so long as safeguards are in place to assure

procedural and substantive fairness. The solution to resolving the

inconsistent judicial response in divorce proceedings involving frozen

pre-embryos may, indeed, lie in the realm of prenuptial and surrogacy

agreements. By expanding the fairness standards already imposed just a

bit further to validate these other forms of ante-natal contracts, courts

may well find the winning solution that will enable a just resolution to

this recurring, if not escalating, issue.

holding parties to prior agreements despite changed circumstances is not unfair, unless either

party did not knowingly and freely enter into such agreement.” (footnote omitted)).

228

Davis, 842 S.W.2d at 604.

229

Waldman, supra note 120, at 929 (“A woman’s choice to erect a barrier to her own use of

the embryos post-divorce is untroubling if it indeed represents a choice.”).