Connecticut Supreme court building in Hartford. Photo: Natalia Bratslavsky/Shutterstock.com

Experts say a Connecticut Supreme Court ruling—which allowed a litigant to destroy frozen pre-embryos—suggests the fate of similar litigation will rest on signed agreements between the parties involved.

In its 7-0 ruling from the bench, the justices didn't directly address the ethical issues, such as when an embryo becomes a life. That, the justices said, they'd save "for another day." Rather, the high court focused on whether there was an enforceable contract between the litigants—a couple who later got divorced.

The ramifications could be widespread, especially because of the justices' approach, attorneys and court observers said.

University of Connecticut School of Law professor Susan Schmeiser said the court "did a good job of defusing the potentially hot-button issue of life," and that it validated "people's autonomy to make decisions for themselves in an agreement format."

"There absolutely is precedent here," Schmeiser said. "Now trial courts, moving forward, will know that they should look at any prior agreements that they have entered into regarding the disposition of embryos, and determine whether that agreement is enforceable, like they would any other agreement."

Pre-Embryo as Marital Property

At issue in Bilbao v. Goodwin was a divorced couple's dispute over how to handle the result of their in vitro fertilization treatments. The case hinged on whether the now-former wife could discard frozen pre-embryos—formed within 14 days of fertilization, but before implantation in the uterus—created with her ex-husband's sperm.

The couple had signed an agreement to discard any remaining embryos if they divorced. The former husband, Timothy Goodwin, however, changed his mind, and wanted to void the agreement after the birth of his daughter Isabella. He said through his attorney that he wanted another couple to adopt the embryos. But his ex-wife, Jessica Bilbao, argued she didn't want the embryos with strangers, and wanted the contract upheld.

The state Supreme Court weighed amicus briefs from pro-life groups, but reversed a lower court ruling, which had sided with the father.

"The issue of whether or not embryos should be treated as people was not appropriately argued at the trial court level," said Katherine Kraschel, lecturer in law and executive director of the Solomon Center for Health Law and Policy at Yale Law School. "The court said there was an enforceable agreement, therefore they did not reach the question of whether or not the pre-embryo was marital property."

Kraschel continued: "There were amicus brief filings and Monday morning quarterbacking when they tried to introduce arguments related to protecting legal rights of the embryo, but it was just too late and not properly in front of the court at the trial level."

Now, some observers say the case makes it clear that couples should consider enforcement—and even what other parties might have a stake in their family planning—when entering similar agreements.

"If I was running a storage facility of a fertility clinic, I'd be pleased with the certainty that the court would enforce these agreements," Kraschel said. "In a lot of ways, these are three-party agreements between the couple and the fertility clinic."

Schmeiser, meanwhile, suggested even broader considerations.

"The lesson here is that parties should discuss these issues in advance with either each other, and potentially with advisers, doctors, family and friends," Schmeiser said.

Representing the ex-wife were Scott Garosshen, Brendon Levesque and Michael Taylor, of Hartford-based Horton, Dowd, Bartschi & Levesque. They all declined to comment.

The former husband's lawyer is Brookfield solo practitioner Joseph Secola, who did not respond to a request for comment.

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Former Spouses' Fight Over Frozen Embryo Reaches Connecticut Supreme Court