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The Connecticut Supreme Court has ruled that an agreement to destroy frozen embryos upon divorce is a contract that can be enforced by one of the parties.
The court rejected arguments by Timothy Goodwin, who said he changed his mind and wanted to preserve the embryos that he created when he was married to Jessica Bilbao.
A trial judge had ruled that the agreement to dispose of the embryos wasn’t enforceable, had determined that the embryos were property, and had awarded them to Bilbao.
The trial judge said the contract wasn’t enforceable because it didn’t satisfy two elements of a contract: a promise and the exchange of something of value.
The state supreme court disagreed, saying both parties had made mutual promises to provide gametic material, and the fertility clinic agreed to store the embryos. The exchange of promises was sufficient to form a contract, the appeals court said.
The state supreme court said it was adopting a two-step approach used by a majority of the states that have considered the issue. In the first step, a contract between the parties is presumed valid and enforceable. If there is no valid contract, the court proceeds to the second step and weighs each party’s interest in the embryos.
Goodwin had argued on appeal that embryos are human beings, rather than property, and they should be awarded to the party that seeks to preserve them.
The Connecticut Supreme Court said Goodwin’s argument is premised on the holding that the contract was unenforceable. Because the contract is enforceable, Goodwin loses the case, the state supreme court said.
If Goodwin’s argument is premised on the idea that a contract requiring destruction of embryos is unenforceable as a matter of public policy, that argument was forfeited because he didn’t raise the issue at trial, the state supreme court said.
The state supreme court clarified that its decision applies only to contracts that, if enforced, “will not result in procreation.”
“We do not decide whether the contractual approach applies in a scenario that would force one party to become a genetic parent against his or her wishes or, if the contractual approach does apply, whether such a contract would be unenforceable for other reasons, including public policy,” the state supreme court said.