Connecticut’s highest court heard arguments Tuesday about what should happen to frozen human embryos when a couple gets divorced.
The Supreme Court case, which was started by a divorced Connecticut couple who created frozen embryos while married, joins a group of legal cases across the country that don’t neatly fit into one specific area of the law.
And experts like Katie Kraschel, executive director of the Solomon Center for Health Law and Policy at Yale Law School, are seeing them come up more frequently.
“A little over a dozen states courts have issued decisions governing embryo disposition disputes, and they are increasingly common,” she said, “which isn’t surprising given that there are an estimated 1 million embryos frozen throughout the U.S.”
The Connecticut case is raising questions about whether or not frozen embryos are people or property, and if contracts signed when entering into fertility treatment should be legally upheld. At the heart of the case, Timothy Goodwin is fighting for possession of the embryo he created with ex-wife, Jessica Bilbao.
Court documents show that Goodwin wants to preserve the embryo to use or put up for adoption, while Bilbao wants the embryo discarded—that’s what the couple originally agreed to in a contract they signed with a reproductive center shortly after they married in 2011.
They wanted the ability to have children through in vitro fertilization and the process created two embryos that contain each of their genetic material.
Goodwin and Bilbao went on to have a daughter from one embryo before seeking a divorce in 2016. Joseph P. Secola, an attorney representing Goodwin in the court case, said his client changed his mind from what he agreed to in the contract and that he should get the embryo.
“One party wants the embryo destroyed and the other doesn’t, and I’m just suggesting that if we’re going to be using any kind of legal balancing test, that we err on the side of life and not on the side of death,” Secola said before Supreme Court justices Tuesday.
But a trial court has already ruled in favor of Bilbao. The court determined that the signed contract with the center was not enforceable, but instead balanced the interests of both Goodwin and Bilbao. Kraschel said courts that use this technique look at a number of factors for the balancing, but a dominant consideration is the ability to have genetically-related children if embryos are discarded.
“If the embryos are someone’s ‘last chance’ at parenthood, states have been more likely to allow that party to use the embryos over the other party’s objections,” she said.
The trial court determined that wasn’t the situation in this case, as Goodwin has a total of six biological children, including the daughter he shares with Bilbao. After possession of the embryo was awarded to Bilbao, Goodwin appealed the decision.
The case is now before the Supreme Court, which will determine the fate of this case as well as set a legal precedent for future cases involving disputed possession of frozen embryos.
Bilbao’s attorney, Scott Garosshen, said Tuesday that nullifying the original contract agreement with the reproductive services center and awarding the embryo to Goodwin would violate Bilbao’s rights.
“The right to avoid procreation is just as important of a constitutional right,” he said before court justices.
But Secola argued that procreation already happened when the embryo was created and that the embryo should not be treated as property, but rather something that has the potential to one day become a person. Garosshen countered that current law does not support that claim.
Similar cases throughout the United States have drawn in advocates from pro-life and religious groups, pro-abortion and reproductive rights organizations, family and marital law services, and other interested parties.
Representatives for the American Association of Pro-Life Obstetricians and Gynecologists filed a brief in the Connecticut case in support of Goodwin’s argument, while the American Academy of Matrimonial Lawyers, Connecticut Chapter filed a brief supporting the contract and balancing interests approaches.
Kraschel said some states have created new laws on how to handle these cases. In Arizona, a recently-passed statute would always award control over the embryos to the party that wants to use them for procreation. A similar bill is pending in Missouri, she said.
A judgement in the Connecticut Supreme Court case is expected at a later date.