David Freed v. Elizabeth Freed

FILED

Jan 26 2024, 8:33 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Alexander N. Moseley Tara K.H. Rabiola

Dixon & Moseley, P.C. Jaimie L. Cairns

Indianapolis, Indiana Cairns Rabiola Vance, LLC

Greenwood, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David Freed, January 26, 2024

Appellant-Respondent, Court of Appeals Case No.

23A-DC-129

v. Appeal from the Johnson Circuit

Court

Elizabeth Freed, The Honorable Andrew S.

Appellee-Petitioner. Roesener, Judge

Trial Court Cause No.

41C01-2203-DC-188

Opinion by Judge Kenworthy

Judges Foley and Felix concur.

Kenworthy, Judge.

Case Summary

[1] During their marriage, David Freed (“Father”) and Elizabeth Freed (“Mother”)

underwent in vitro fertilization (“IVF”) to attempt to have children. They

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created and froze pre-embryos, 1 signing an agreement with a cryopreservation

company. One of those pre-embryos resulted in the birth of a child.

[2] The couple divorced and resolved all issues except the custody of a single

remaining frozen pre-embryo. The issue of how to resolve the custody of a

frozen pre-embryo has never appeared before our appellate courts, and the trial

court looked to the approaches used by other jurisdictions, balancing the

parties’ interests and ultimately awarding the pre-embryo to Mother.

[3] Father appeals, raising the issue of whether the trial court’s award of the pre-

embryo to Mother over Father’s objection violates Father’s fundamental right

of procreation. Determining the trial court applied the appropriate test, we

affirm.

Facts and Procedural History 2

[4] Mother and Father were married in June 2015. In the early stages of their

marriage, Mother and Father discussed raising a family together. They hoped

to have two children. When Mother and Father could not get pregnant, they

visited a fertility doctor.

1

A human pre-embryo is a human ovum (egg) that has been fertilized by a human sperm and begun cell

division. The pre-embryo at issue was frozen at six days old.

2

We held oral argument on October 26, 2023, at Purdue University. We thank counsel and those in

attendance for their attentiveness and respect for the sensitivity of this issue.

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[5] Father went through testing first, and his results showed he did not have fertility

issues. Mother was tested, and her results revealed she had low ovarian reserve.

Her doctor recommended the couple try IVF. Mother took medication to

stimulate her ovaries so they would release eggs. The eggs were collected and

fertilized with Father’s sperm. This first cycle of IVF resulted in one pre-

embryo. Mother and Father completed another cycle, which resulted in three

pre-embryos.

[6] After completing the IVF cycles, the couple had the first pre-embryo transferred

to Mother’s uterus in April 2019. The transfer resulted in a pregnancy but

ended in a miscarriage. Mother and Father transferred two more pre-embryos

in November 2019. “[O]ne of the embryos took and the other did not.” Tr.

Vol. 2 at 11. The successful pre-embryo resulted in the birth of a child, G.

[7] The state of Mother and Father’s marriage when they conducted the second

transfer “was definitely not good.” Id. “2019 had been a difficult year for

[them] with . . . the miscarriage and then other . . . family loss and . . . the

discussion of divorce had come up a few months prior to the transfer.” Id.

[8] Mother filed for dissolution of marriage in March 2022. Mother and Father

submitted a partial settlement agreement resolving all issues except disposition

of the sole remaining pre-embryo. The trial court accepted the partial

settlement agreement and dissolved the parties’ marriage.

[9] Mother requested the trial court award her the pre-embryo. She said that if

awarded the pre-embryo, she would transfer it to her uterus in hopes it would

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result in the birth of a second child. Mother said Father “could either be . . .

not involved at all or he could . . . be in a co-parenting relationship like he is

with our son, [G.]” if she were to have another child using the pre-embryo. Id.

Mother earns a salary of $83,000 as a lab supervisor at Roche Diabetes Care,

and stated she would be able to financially support herself, G., and another

child.

[10] Mother said, “[T]here’s very little chance that I could give [G.] a biological . . .

sibling ever . . . just based on my previous infertility.” Id. at 12. She also

acknowledged she was four years older than when she underwent her first

round of IVF, and—because Mother was forty years old—a future pregnancy

“may not even be . . . advised by a doctor.” Id. Completing another round of

IVF would not be a “viable option for [her] to pursue” because she did not have

enough coverage left on her insurance. Id. Mother acknowledged the chances

of success with the pre-embryo transfer: “[A]s I get closer to menopause . . . my

cycle could be off and then the [pre-embryo] doesn’t necessarily take if the

timing is off when they do the implantation.” Id. at 17. When asked if she

believed it was fair “at this point in time to make Mr. Freed a father of a second

child if he . . . doesn’t want to be,” Mother responded “I don’t know.” Id. at

19–20.

[11] Mother concluded by saying:

These embryos—I already feel like they’re my children. At this

point, you can already identify whether they’re a boy or a girl.

We didn’t get them tested, so I don’t know what the last one is.

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Our first miscarriage was a little girl. And I just think of this

embryo already as my child. And I can’t fathom, um, destroying

it or donating it to science. (Crying). I just want the chance to

see if it would result in a . . . child.

Id. at 22.

[12] Father requested the trial court award him the pre-embryo so he could ask the

storage facility to dispose of it. He did not want to give the pre-embryo to a

research facility because he did not “know enough of what would be . . . gained

by any study or otherwise, so [he’s] not comfortable with that.” Id. at 27. He

did not want to donate the pre-embryo to another couple because he “think[s]

mentally [he] would struggle knowing that someone else is raising . . . what is

essentially [his and Mother’s] child.” Id. He testified as follows:

[I]t was hard enough to decide to leave the marriage and

separate, um, knowing that I already had a child. . . . [B]ut then

the thought of bringing another one in post divorce is not

something I think would be a wise decision on either part. . . .

[B]ut ultimately, my choice comes down to the fact that I would

not be present . . . in that child’s life and while there would be

some co-parenting, I wouldn’t be present overnights or early

mornings[;] . . . just at the times where I was able to visit or then

have custody on weekends and such . . . with the current

situation with [G.], our son, . . . it’s hard on a regular basis—a

daily basis (crying) to know that I don’t get to see him.

Id. at 24.

[13] When they began IVF, Mother and Father signed an agreement with the

cryopreservation clinic—the facility storing the pre-embryos. In the Advanced

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Directives portion of the agreement, Mother and Father indicated that if either

of them dies, sole ownership of the pre-embryos would be given to the surviving

party. They indicated if they both die, the facility would discard the pre-

embryos. The Advanced Directives also provides:

If the Client Depositors’ relationship terminates and the

disposition of the embryos is provided for by a divorce decree or

other legally-binding document, the Company will comply with

that document, upon receipt of a copy. Otherwise, the Company

shall dispose of all embryos only as provided herein or in

accordance with the Company’s Disposition Directive document.

Ex. Vol. 3 at 7.

[14] The agreement also contains the Conditions of Release of the pre-embryos,

which states:

A. If the recipient of the embryos is the Client Depositor, the

embryos will be released:

i. only to a licensed physician (who must execute a

consent form provided by the Company), and

ii. upon the express notarized authorization of both

Client Depositors, and

iii. upon the authorization of the Recipient’s Clinic,

and

iv. upon completion of serology/virology tests required

by the Company.

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Id. at 5.

[15] The trial court found the contract offered no directive for the disposition of the

pre-embryo if Mother and Father’s marriage was dissolved. Because Indiana

lacks a statutory scheme or case law on this issue, the trial court looked to other

jurisdictions for guidance. In its thorough and well-articulated order, the court

found Mother’s interest in using the pre-embryo by attempting to implant it and

bring a child to term outweighed Father’s interest in avoiding parenthood.

Father now appeals.

1. Assisted Reproductive Technology

[16] Although pre-embryo disposition after the dissolution of a marriage is an issue

of first impression in Indiana, we anticipate courts will encounter this issue

again. There are eight IVF clinics in Indiana, and seven of those clinics

cumulatively reported the births of over 1,000 infants in the year 2021 alone.

Assisted Reproductive Technology (ART) Data, Centers for Disease Control and

Prevention,

https://nccd.cdc.gov/drh_art/rdPage.aspx?rdReport=DRH_ART.ClinicsList&

SubTopic=&State=IN&Zip=&Distance=50 (last visited January 19, 2024)

[https://perma.cc/52S2-WHSY]. And the issue of pre-embryo disposition is

not limited to the desires of the genetic contributors—third parties can become

involved and complicate the issue. See Marla Clark, Potential Parenthood: The

Ownership of Frozen Embryos, 43 Res Gestae 24, 27 (Nov. 1999) (noting issues of

inheritance when genetic contributors die). Establishment of public policy on

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this delicate issue would be better left to our General Assembly, but there is

currently no legislative guidance. 3

2. Standard of Review

[17] Where—as here—the trial court makes special findings of fact and conclusions

of law, we do not set aside the findings or judgment “unless clearly erroneous,

and due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” Ind. Trial Rule 52(A). “Findings of fact are

clearly erroneous only when they have no factual support in the record[.]”

3

On January 11, 2023, House Bill 1267 was given its first reading and referred to the Committee on

Judiciary. No further action has been taken regarding the bill. In relevant part, House Bill 1267 states:

(a) In the event that two (2) legal owners of cryopreserved embryos are separating or divorcing

and do not agree upon the disposition of any cryopreserved embryos, a court of competent

jurisdiction shall first look to any existing agreement expressing the couple’s intent regarding the

disposition of the couple’s remaining embryos in the event of divorce or separation. In the

absence of an agreement or a dispute concerning the validity of an agreement, the court shall

attempt to balance the parties’ interests when awarding the embryos.

(b) A court shall consider the following factors when balancing the parties’ interests:

(1) The intended use of the embryos by any party wishing to preserve them.

(2) A party’s reason for wanting to procreate with the cryopreserved embryos.

(3) The reason for the cryopreservation of the embryos.

(4) Each party’s ability to have genetic children through other means.

(5) The existence of a party’s need to preserve fertility.

(6) Any burden or hardship that may be placed on a party wishing to avoid procreation.

(7) Any prior verbal discussions that the party wishing to procreate may have relied upon.

(8) Any bad faith attempt, by either party, to use the cryopreserved embryos as leverage

during a divorce proceeding.

(9) Any other consideration or occurrence deemed relevant by the court.

(c) A party opposed to the use of a cryopreserved embryo for the purpose of procreation is not

considered a legal parent to any child created from the use of a cryopreserved embryo unless the

party agrees, in writing, to be a legal parent to the child.

H. 1267, 2023 Reg. Sess. (Ind. 2023), https://billtexts.s3.amazonaws.com/_data/in/https-

d37sr56shkhro8-cloudfront-net-pdf-documents-123-2023-house-bills-HB1267-HB1267-01-INTR-

pdf.pdf (last visited January 16, 2024) [https://perma.cc/VS7W-49SY].

Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 8 of 30

Wysocki v. Johnson, 18 N.E.3d 600, 603 (Ind. 2014). “But the trial court’s

conclusions of law and any constitutional challenges are reviewed de novo.” In

re Adoption I.B., 32 N.E.3d 1164, 1169 (Ind. 2015) (internal citations omitted).

3. Rights to Procreation and Parenthood

[18] The United States Supreme Court has addressed the right to procreate in several

instances. The Court upheld the sterilization of a woman in Buck v. Bell, 274

U.S. 200, 207 (1927), but later struck down a statute authorizing the

sterilization of certain classes of criminals, Skinner v. Oklahoma, 316 U.S. 535,

541 (1942). In Skinner, the Supreme Court called procreation “one of the basic

civil rights of man” and “fundamental to the very existence and survival of the

[human] race.” 316 U.S. at 541. In Griswold v. Connecticut, the United States

Supreme Court struck down a statute forbidding married couples’ use of

contraceptives, describing the marital relationship as “lying within the zone of

privacy created by several fundamental constitutional guarantees.” 381 U.S.

479, 485 (1965). And in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), the

Supreme Court said, “If the right of privacy means anything, it is the right of

the individual, married or single, to be free from unwarranted governmental

intrusion into matters so fundamentally affecting a person as the decision

whether to bear or beget a child.” The Indiana Supreme Court has explicitly

recognized a fundamental right to procreation. See Members of Med. Licensing Bd.

of Ind. v. Planned Parenthood Great Nw., Haw., Ala., Ind., Ky., Inc., 211 N.E.3d

957, 969 (Ind. 2023); State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994); State ex

rel. Pollard v. Crim. Ct. of Marion Cnty., 329 N.E.2d 573, 585 (Ind. 1975).

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[19] Under federal substantive due process analysis, the State may not “directly and

substantially” interfere with fundamental rights. Zablocki v. Redhail, 434 U.S.

374, 387 (1978). If the State’s action directly and substantially interferes with a

fundamental right, the action is subject to strict scrutiny, meaning the action

“must be a necessary means to a compelling governmental purpose and be

narrowly tailored to that purpose.” Boultinghouse v. State, 120 N.E.3d 586, 590

(Ind. Ct. App. 2019) (quoting Ind. Dep’t of Env’t. Mgmt. v. Chem. Waste Mgmt.,

Inc., 643 N.E.2d 331, 337 (Ind. 1994)), trans. denied. “Our Court has held that

the ‘state and federal substantive due process analys[e]s [are] identical.’” Id.

(quoting N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans.

denied).

[20] Pre-embryo disposition cases also implicate parenting rights, which spur

additional considerations. Mother argues Father has already consented to

procreation by contributing to the creation of the pre-embryos, which reframes

Father’s procreation rights as parenting rights. See Tracey S. Pachman, Disputes

over Frozen Preembryos & the “Right Not to Be a Parent,” 12 Colum. J. Gender & L.

128 (2003). Parents have a constitutional right to raise their children as they see

fit. Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510,

535 (1925) (“The child is not the mere creature of the state; those who nurture

him and direct his destiny have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”); Wisconsin v. Yoder, 406

U.S. 205, 233 (1972) (“The duty to prepare the child for ‘additional

obligations,’ referred to by the [Pierce] Court, must be read to include the

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inculcation of moral standards, religious beliefs, and elements of good

citizenship.”). The Indiana Supreme Court has also outlined the importance of

the right to parenthood, stating a “parent’s interest in the care, custody, and

control of his or her children is perhaps the oldest of the fundamental liberty

interests.” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake

Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005) (internal quotation

marks omitted)).

[21] Some states 4 have adopted a version of Section 706 of the Uniform Parentage

Act (2000). Section 706(a) provides:

If a marriage is dissolved before placement of eggs, sperm, or an

embryo, the former spouse is not a parent of the resulting child

unless the former spouse consented in a record that if assisted

reproduction were to occur after a divorce, the former spouse

would be a parent of the child.

Under such statutes, although the former spouse has procreated or consented to

procreation, the former spouse may opt out of legal parenthood. But cf. Straub v.

B.M.T. by Todd, 645 N.E.2d 597, 598 (Ind. 1994) (holding a contract absolving

the father of child support was void and unenforceable because it would deprive

the child of parental support). 5

4

These states include Alaska, Colorado, Connecticut, Delaware, Illinois, Maine, New Mexico, North

Dakota, Rhode Island, Texas, Utah, Vermont, Washington, and Wyoming.

5

In its order, the trial court states, “Mother has unequivocally stated that she will require no financial

support from [Father], so he is relieved of this burden.” Appellant’s App. Vol. 2 at 29. We note Indiana law

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[22] Mother contends Father’s right to procreation “is moot given the fact that he

already consented to it when providing his sperm to fertilize [Mother’s] egg.”

Appellee’s Br. at 11. Father argues the trial court’s award of the pre-embryo to

Mother for implantation strips Father of his right to decide whether to

procreate. Father’s argument assumes but does not provide legal authority to

explain how the trial court’s order amounts to state action.

[23] According to the Fourteenth Amendment to the United States Constitution:

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

“Because the Amendment is directed at the States, it can be violated only by

conduct that may be fairly characterized as ‘state action.’” Lugar v. Edmondson

Oil Co., 457 U.S. 922, 924 (1982). To be considered “state action,” the conduct

causing the deprivation of a federal right must be “fairly attributable to the

State.” Id. at 937. In determining whether the right is fairly attributable to the

State, courts conduct a two-step analysis. First, the deprivation must be caused

by the exercise of some right or privilege created by the State or by a rule of

conduct imposed by the State or a person for whom the State is responsible. Id.

indicates otherwise. See Schwartz v. Heeter, 994 N.E.2d 1102, 1107 (Ind. 2013) (“[C]hild support payments are

for the benefit of children . . . [and] [m]other could not bargain them away, . . . even at [f]ather’s urging.”).

Neither party raises the issue of child support on appeal.

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Second, the party charged with the deprivation must be a person who may

fairly be said to be a “state actor.” Id. Without this second inquiry, “private

parties could face constitutional litigation whenever they seek to rely on some

state rule governing their interactions with the community surrounding them.”

Id.

[24] The two inquiries “collapse into each other when the claim of a constitutional

deprivation is directed against a party whose official character is such as to lend

the weight of the State to his decisions.” Id. The inquiries “diverge when the

constitutional claim is directed against a party without such apparent authority,

i.e., against a private party.” Id. Action by a private party pursuant to a statute,

without something more, does not justify a characterization of that party as a

“state actor.” Id. at 939.

[25] Here, the trial court resolved a family law dispute between private parties—

indeed, on an issue the parties chose to leave open to judicial determination

through their cryopreservation agreement. 6 It is the trial court’s role to divide

property and determine child custody when dissolving marriages. See Ind.

Code §§ 31-15-7-5 & 31-30-1-12. 7 In this role, the trial court must balance

parties’ competing fundamental rights. The trial court here merely provided a

6

We urge parties signing cryopreservation agreements to carefully consider the consequences of such

agreements should they later separate.

7

Trial courts also determine child custody for unmarried parents, I.C. § 31-14-10-1, and provide relief in

property disputes when unmarried couples separate, Neibert v. Perdomo, 54 N.E.3d 1046, 1051–52 (Ind. Ct.

App. 2016).

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neutral forum to resolve a private dispute. This is insufficient state action to

implicate Fourteenth Amendment protections. The disposition of a pre-

embryo—which we will categorize below as being between a person and

property—may therefore properly be determined by the trial court.

4. Pre-Embryos Are Entitled to Special Respect

[26] The ways courts have classified pre-embryos—as property, persons, or an

interim category—impacts the outcome of pre-embryo disposition cases.

Jurisdictions that find pre-embryos are personal property can treat the pre-

embryos as any other marital property and apply their states’ property division

regimes. See In re Marriage of Dahl and Angle, 194 P.3d 834, 841 (Or. Ct. App.

2008) (“[In the context of pre-embryo dispositions,] we review de novo the trial

court’s division of marital property, [and] we review the award itself for the

proper exercise of discretion.”); Kotkowski-Paul v. Paul, 204 N.E.3d 66, 76 (Ohio

Ct. App. 2022) (“[T]he trial court did not err in concluding the subject embryos

are marital property subject to allocation as part of the division of such

property.”).

[27] Louisiana classifies an “in vitro fertilized human ovum” as “a biological human

being which is not the property of the physician which acts as an agent of

fertilization, or the facility which employs him or the donors of the sperm and

ovum.” La. Stat. Ann. § 9:126 (1986). “A court in the parish where the in vitro

fertilized ovum is located may appoint a curator upon motion of the in vitro

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fertilization patients, their heirs, or physicians who caused in vitro fertilization

to be performed, to protect the in vitro fertilized human ovum’s rights.” Id.

[28] Most courts that have addressed this issue, following the approach taken by the

Tennessee Supreme Court in Davis v. Davis, find pre-embryos “occupy an

interim category that entitles them to special respect because of their potential

for human life.” 842 S.W.2d 588, 597 (Tenn. 1992), cert. denied. Under this

rationale, pre-embryos cannot be valued and divided as other marital property.

[29] Here, neither party argues the trial court erred in classifying the pre-embryo as

deserving “special respect.” But Father argues the trial court erred in finding

the embryos deserved special respect to the extent it did so because of the

State’s interest in them, which Father claims is not supported by outside

jurisdictions. At oral argument, Father’s counsel drew this Court’s attention to

Indiana Code Section 16-34-1-0.5, which explicitly excludes IVF from Indiana’s

statute prohibiting abortion.

[30] The United States Supreme Court has afforded recognition and some State

protection to human embryos at the earliest stages of development. In vitro pre-

embryos and in utero pre-embryos share a potential for human life that sets them

apart from property. We agree with the trial court that Roe v. Wade, 410 U.S.

113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833

(1992)—though overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S.

215, 215 (2022)—continue to offer helpful discussions about how the law views

nascent human life. The Roe court acknowledged the State has an “important

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and legitimate interest in protecting the potentiality of human life.” Roe, 410

U.S. at 162. The Casey court decided “the State may take measures to ensure

that the woman’s choice is informed” in order to “promote the State’s profound

interest in potential life, throughout pregnancy[.]” Casey, 505 U.S. at 878.

[31] Indiana law supports the trial court’s determination that pre-embryos deserve

special respect. The Indiana Supreme Court has found “our laws have long

reflected that Hoosiers, through their elected representatives, may collectively

conclude that legal protections inherent in personhood commence before birth,

so the State’s broad authority to protect the public’s health, welfare, and safety

extends to protecting prenatal life.” Members of Med. Licensing Bd. of Ind., 211

N.E.3d at 961. And Indiana Code Section 16-34-2-1.1 requires a woman

seeking a legal abortion to sign a consent form acknowledging “human physical

life begins when a human ovum is fertilized by a human sperm.” But that

definition of human life “does not apply to in vitro fertilization.” I.C. § 16-34-

1-0.5. Therefore, although Indiana law attributes “human physical life” to

fertilized eggs in utero, it sets pre-embryos in vitro apart. As such, we cannot say

in vitro frozen pre-embryos are entitled to personhood under Indiana law. 8

[32] Thus, pre-embryos, as neither property nor persons, are in a separate category

that entitles them to special respect. Father and Mother do not have a true

8

We discuss abortion caselaw and statutes in this section only to the extent they illustrate courts’

understandings of prenatal existence. As is apparent from Indiana Code Section 16-34-1-0.5, Indiana law

treats pregnancy and abortion, which occur in utero, differently from IVF, which occurs in vitro—ex utero.

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property interest in the pre-embryos, but “they do have an interest in the nature

of ownership, to the extent they have decision-making authority concerning

disposition of the preembryos, within the scope of policy set by law.” Davis,

842 S.W.2d at 597.

5. Other Jurisdictions’ Approaches to Pre-Embryo

Disposition

[33] Generally, states have taken three approaches in pre-embryo disposition cases:

the contract approach, the balancing test approach, and the contemporaneous

mutual consent approach. In practice, courts do not strictly adhere to just one

of these approaches, generally applying some combination.

[34] The contract approach is the preferred method of deciding pre-embryo

disposition cases, but in many cases, courts find nothing in the contract

revealing the parties’ preference for pre-embryo disposition in the case of

separation or dissolution. When contracts do not contain such a provision,

most states adopt the balancing approach, weighing the parties’ interests against

each other. This weighing usually involves one party’s interest in using the pre-

embryo to attempt to bring a child to term and one party’s interest in avoiding

procreation by discarding the pre-embryos or leaving the pre-embryos frozen.

Finally, a few states have adopted the contemporaneous mutual consent

approach, which maintains the status quo indefinitely (leaving the pre-embryos

frozen) until the parties agree on the disposition of the pre-embryos.

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5.1 The Contract Approach

[35] Appellate courts in other jurisdictions generally attempt to honor the agreement

between the couple and the pre-embryo storage facility. Most of these courts

prescribe the contract approach first and explain that only after determining

there is not an applicable agreement should courts move on to another

approach. By enforcing the terms of the parties’ agreement with the

cryopreservation clinic, courts can ensure predictability and honor the original

intent of the parties. See Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. Ct.

2013).

[36] Courts following the contract approach treat the contract for the disposition of

the pre-embryos no differently than other contracts, leaving open the same

defenses and interpretation regimes. See, e.g., Bilbao v. Goodwin, 217 A.3d 977,

980 (Conn. 2019) (holding the checkbox nature of the cryopreservation

agreement did not render it insufficient); see also McQueen v. Gadberry, 507

S.W.3d 127, 156 (Mo. Ct. App. 2016) (holding the party seeking to enforce a

cryopreservation directive did not prove by clear and convincing evidence the

directive was a valid and enforceable agreement between the parties). Indeed,

such courts have reasoned “[t]he subject of this dispute may be novel but the

common-law principles governing contract interpretation are not.” Kass v. Kass,

696 N.E.2d 174, 180 (N.Y. 1998).

[37] But the Supreme Judicial Court of Massachusetts, like other critics of the

contract approach, noted the approach does not leave room for one or both

parties’ change of heart. A.Z. v. B.Z., 725 N.E.2d 1051, 1059 (Mass. 2000)

Court of Appeals of Indiana | Opinion 23A-DC-129 | January 26, 2024 Page 18 of 30

(“[P]rior agreements to enter into familial relationships (marriage or

parenthood) should not be enforced against individuals who subsequently

reconsider their decisions.”).

5.2 The Balancing Approach

[38] Most jurisdictions, if they cannot resolve the issue by enforcing the

cryopreservation agreement, follow the balancing approach taken in Davis.

There, the Tennessee Supreme Court stated:

[D]isputes involving the disposition of preembryos produced by

in vitro fertilization should be resolved, first, by looking to the

preferences of the progenitors. If their wishes cannot be

ascertained, or if there is dispute, then their prior agreement

concerning disposition should be carried out. If no prior

agreement exists, then the relative interests of the parties in using

or not using the preembryos must be weighed. 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 preembryos in

question. If no other reasonable alternatives exist, then the

argument in favor of using the preembryos to achieve pregnancy

should be considered. However, if the party seeking control of

the preembryos intends merely to donate them to another couple,

the objecting party obviously has the greater interest and should

prevail.

842 S.W.2d 588 at 604.

[39] Courts following the approach in Davis have outlined several considerations for

trial courts balancing the parties’ interests:

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(1) the intended use of the frozen pre-embryos by the party

seeking to preserve them; (2) the reasonable ability of a party

seeking implantation to have children through other means; (3)

the parties’ original reasons for undergoing IVF, which may

favor preservation over disposition; (4) the potential burden on

the party seeking to avoid becoming a genetic parent; (5) either

party’s bad faith and attempt to use the frozen pre-embryo as

leverage in the divorce proceeding; and (6) other considerations

relevant to the parties’ unique situation.

Jocelyn P. v. Joshua P., 250 A.3d 373, 380 (Md. Ct. Spec. App. 2021); see also In re

Marriage of Rooks, 429 P.3d 579, 593 (Colo. 2018), cert. denied.

[40] Father, like other critics of the balancing test approach, claims the approach

puts the court in the position to make reproductive decisions for the parties—

thereby inevitably violating one of the parties’ right to procreation. And courts’

determinations under the balancing test are fact-specific, leading to less

predictable results for the parties.

5.3 The Contemporaneous Consent Approach

[41] A few courts have adopted the contemporaneous mutual consent approach—

the approach Father suggests we take. Under this approach, neither party may

determine pre-embryo disposition without the present consent of the other

party. As discussed earlier, the Supreme Judicial Court of Massachusetts

adopted the contemporaneous consent approach, finding the agreement at issue

was “not a separation agreement that is binding on the couple in a divorce

proceeding pursuant to [Massachusetts’ alimony statute].” A.Z., 725 N.E.2d at

1057. The court said its “Legislature has already determined by statute that

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individuals should not be bound by certain agreements binding them to enter or

not enter into familial relationships.” Id. at 1158.

[42] The Iowa Supreme Court has determined cryopreservation agreements are not

enforceable when one of the parties later changes his or her mind. In re

Marriage of Witten, 672 N.W.2d 768, 777 (Iowa 2003). The Witten court

reasoned “it may be impossible to make a knowing and intelligent decision to

relinquish a right in advance of the time the right is to be exercised.” Id.

(internal quotation omitted). The Witten court also noted the contemporaneous

consent approach adheres to Iowa law by allowing the parties “to make family

and reproductive decisions based on their current views and values” with an

“awareness that such decisions are highly emotional in nature and subject to a

later change of heart.” Id. at 782.

[43] The Davis court explicitly decided against the contemporaneous consent

approach in part because when the case was decided in 1992, frozen pre-

embryos could only survive for two years. The Davis court determined applying

the contemporaneous consent approach would grant the party seeking to avoid

procreation “the inherent power to veto any transfer of the preembryos . . . and

thus to insure their eventual discard or self-destruction.” Davis, 842 S.W.2d at

598.

[44] Although cryopreservation clinics can now store pre-embryos indefinitely, the

concern about granting one party a de facto veto persists. In Jocelyn P., the

Maryland Court of Special Appeals criticized the contemporaneous consent

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approach as creating a de facto veto over the party seeking to use the pre-

embryo by avoiding any resolution until the issue is mooted and as a way to

punish soon-to-be ex-spouses. 250 A.3d at 397. The Pennsylvania Superior

Court called the approach “totally unrealistic” because if the parties could come

to an agreement, they would not be before the court. Reber v. Reiss, 42 A.3d

1131, 1135 n.5 (Pa. Super. Ct. 2012).

5.4 Deference to Trial Court

[45] Some appellate courts, rather than explicitly adopt one of the three approaches,

defer to the decision of the trial court. See Reber, 42 A.3d at 1136 (determining

without explicitly adopting a test that the balancing approach used by the trial

court was the most suitable); see also McQueen, 507 S.W.3d at 157 (“Multiple

decisions from our Court indicate that [the statute governing the division of

marital property] does not prohibit courts from awarding property to parties

jointly in unusual circumstances where the property cannot be justly divided.”).

6. Application

6.1 The cryopreservation agreement is inconclusive about the disposition of the

pre-embryo

[46] We agree with the courts that first look for an enforceable agreement regarding

the disposition of the pre-embryos in the event of divorce. This approach

allows trial courts to attempt to honor both parties’ interests and rights

regarding procreation: “[B]inding agreements ‘minimize misunderstandings

and maximize procreative liberty by reserving to the progenitors the authority

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

decision.’” Rooks, 429 P.3d at 592 (quoting Kass, 696 N.E.2d at 180).

[47] Mother and Father do not challenge the trial court’s finding that the contract

does not contain a directive on the disposition of the pre-embryo if Mother and

Father’s marriage dissolves. And we agree with the trial court’s conclusion that

Mother and Father offered no directive in the cryopreservation contract

regarding the disposition of the pre-embryo upon the dissolution of the parties’

marriage. Thus, we must resolve this dispute some other way.

6.2 We reject the contemporaneous consent approach

[48] Father proposes we adopt the contemporaneous consent approach, which

“ensures that each of the Parties’ respective constitutional right to procreate, or

not to procreate, is protected from government intrusion.” Appellant’s Br. at 21.

But the facts of this case underscore the inequities of the contemporaneous

consent model. Father’s participation in the IVF process indicates he decided

to exercise his positive right to procreate in 2018. Mother and Father

underwent IVF because Mother had low ovarian reserve. They both hoped for

two children—two full biological siblings. Two rounds of IVF resulted in only

four eggs. Rather than choosing to preserve Mother’s unfertilized eggs after

retrieval, the parties decided to use Father’s sperm to fertilize all of them.

Transfer of the first pre-embryo resulted in miscarriage. Then, at a time when

their marriage “was definitely not good” and after they had discussed divorce,

Mother and Father underwent a second transfer of two pre-embryos. One

child, G., was born and one pre-embryo remains. The parties’ cryopreservation

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contract provides no advanced directive for disposition of this pre-embryo in the

event the parties’ relationship ends. Now, after Mother has relied on Father’s

consistent participation over a course of years, Father seeks to withdraw from

the process and prevent Mother’s use of the pre-embryo, leaving Mother with

little—if any—chance to conceive and give birth to another biological child.

Meanwhile, Father remains physically able to procreate.

[49] We must agree with courts that have found the contemporaneous consent

approach “totally unrealistic.” Reber, 42 A.3d at 1135 n.5. If parties could

agree on their own about the disposition of the pre-embryo upon divorce, they

would have no need of the court’s intervention. Jurisdictions following this

approach ignore any preexisting agreement between the parties if one or both

parties has a change of heart. This creates legal uncertainty and eliminates any

reason for parties to form an agreement regarding the disposition of pre-

embryos upon divorce.

[50] Contrary to honoring both parties’ interests and procreation rights, the

contemporaneous consent approach promotes a clear winner: the party seeking

to avoid procreation. The party seeking to avoid procreation may simply never

agree to the use of the pre-embryos, which would remain frozen indefinitely.

Such a solution would provide the party avoiding procreation with a de facto

veto and an incentive to leverage this issue in bad faith.

[51] The contemporaneous consent approach would require trial courts to abandon

their role in dissolution proceedings for the issue of pre-embryo disposition.

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Indiana Code Section 31-15-7-4(b) instructs courts to divide marital property

“in a just and reasonable manner.” And the trial court has broad discretion

both in “ascertaining the value of property in a dissolution action,” Quillen v.

Quillen, 671 N.E.2d 98, 102 (Ind. 1996), and in determining equitable division

of the property, In re Marriage of Perez, 7 N.E.3d 1009, 1010–12 (Ind. Ct. App.

2014); I.C. § 31-15-7-5 (“The court shall presume that an equal division of the

marital property between the parties is just and reasonable. However, this

presumption may be rebutted by a party who presents relevant evidence . . . that

an equal division would not be just and reasonable[.]”) Indiana Code Section

31-30-1-12 describes the trial court’s jurisdiction to determine child custody in

marriage dissolutions. 9 Pre-embryos are not common marital property nor are

they children; they exist in an interim category between the two. This interim

category is logically included in family law cases, so “[w]e cannot simply do

nothing.” Rooks, 429 P.3d at 592.

6.3 We adopt the balancing approach

[52] If the contract approach does not resolve the parties’ dispute, the trial court

should then seek to balance the parties’ interests. The balancing approach

reflects Indiana trial courts’ role in dissolution proceedings: Mother and Father

have an interest in disposition of the pre-embryo after their divorce, and the trial

9

Trial courts also resolve issues of child custody and property division for unmarried parties. See supra n.7.

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court must weigh their interests and award the pre-embryo “in a just and

reasonable manner.” I.C. § 31-15-7-4(b).

[53] Because pre-embryos are entitled to special respect, certain factors must be

considered when balancing the parties’ interests. We agree with the factors as

listed in Jocelyn P. and Rooks and state them as: (1) the intended use of the pre-

embryos by the party seeking to preserve them; (2) the reasonable ability of the

party seeking implantation to have children through other means; (3) the

parties’ original reasons for undergoing IVF, which may favor preservation over

disposition; (4) the potential burden on the party seeking to avoid becoming a

genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as

leverage in the dissolution proceeding; and (6) other considerations relevant to

the parties’ unique situation.

[54] When weighing the parties’ interests, trial courts should not consider “whether

the party seeking to become a genetic parent using the pre-embryos can afford

another child.” Rooks, 429 P.3d at 594. And “the sheer number of a party’s

existing children, standing alone,” is not “a reason to preclude preservation or

use of the pre-embryos.” Id. Finally, because genetic and gestational

parenthood are distinct from parenthood through adoption, “courts should not

consider whether a spouse seeking to use the pre-embryos to become a genetic

parent could instead adopt a child or otherwise parent non-biological children.”

Id.

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[55] There is language within Davis that, though judicious for the facts therein,

might stifle other trial courts’ abilities to fairly balance the parties’ interests.

The Davis court determined although “women contribute more to the IVF

process than men,” “[t]heir experience . . . must be viewed in light of the joys of

parenthood that is desired or the relative anguish of a lifetime of unwanted

parenthood.” 842 S.W.2d at 601. And the statement that “[o]rdinarily, the

party wishing to avoid procreation should prevail” creates a rebuttable

presumption against the party seeking to use the pre-embryo to procreate. Id. at

604; see Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law’s Male-

centric Approach to Embryo Disputes After Thirty Years of Jurisprudence, 34 Yale J.L.

& Feminism 1, 3–4 (2023).

[56] These comparisons and presumptions proceed from the facts of Davis. There,

the husband’s troubled and fatherless upbringing made him particularly

sensitive to the prospect of creating a child he would be unable to raise. Even

though the wife sought to donate the pre-embryos, the husband was worried the

couple receiving the pre-embryos might give birth to a child and eventually

divorce, leaving the child to suffer an upbringing like the husband’s. We

decline to adopt a presumption in favor of either party.

[57] Here, the trial court identified factors identical to those we have adopted and

determined a consideration of the factors favors Mother. The trial court

explained:

83. Mother does not request that the embryo be awarded to

another female or couple for uterine implantation nor does she

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seek to have the embryo donated for purposes of scientific

research. She plainly seeks to have the embryo implanted in her

uterus with the hope of producing a biological child. Her

medical condition, the existence of which is unchallenged by

Father, operates as a substantial impediment to natural

conception, as does her advancing age. There is no evidence of

bad faith by either party. The original reason for in vitro

fertilization is consistent with the very purpose for which Mother

seeks to use the embryo . . . to beget a biological sibling for [G.].

Finally, Mother’s insurance will cover the cost of this final

uterine implantation. Thereafter, the significant costs of any

future in vitro fertilization will be borne by Mother without

recompense by her health insurer.

84. As it relates to Father, Mother has unequivocally stated that

she will require no financial support from him, so he is relieved

of this burden. There is, however, another burden . . . and a

significant one . . . placed upon Father by way of Mother’s

request. That burden comes in the form of an emotional weight

he is forced to carry by being compelled to [f]ather a child he will

not raise in the context of an intact, nuclear family. It was clear

to this court that Father’s desire to avoid this very heartache was

the principal basis for his request that the embryo be destroyed.

This factor weighs heavily in favor of Father, but, in this court’s

estimation, does not overcome the other factors which tilt in

Mother’s favor.

Appellant’s App. Vol. 2 at 28–29. 10

10

After weighing Mother’s and Father’s interests under the factors enunciated in Jocelyn P. and Rooks, the

trial court proposes the consideration of “how the parties’ competing requests impact the pre-embryo,” which

the trial court frames as “the termination of the pre-embryo” versus “the possibility of viability and life.” Id.

at 30–31. But this factor creates a presumption for the party seeking implantation, and we do not adopt it

here.

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[58] Father appeals the trial court’s use of the balancing test, not the trial court’s

balancing of the factors in favor of Mother. And although we disagree with the

trial court’s statement that Father is relieved of the potential burden of child

support, the error is harmless. Father’s testimony focused on the emotional—

not financial—burden of raising a child outside of marriage. He explained his

preference for discarding the pre-embryo arises from “the fact that [he] would

not be present . . . in that child’s life” because he and Mother would be

divorced. Tr. Vol. 2 at 24. Father described how it was already difficult for him

to raise G. in that context. Father did not provide evidence of—and the trial

court placed little emphasis on—any financial burden an additional child would

place on Father. Further, the pre-embryo has not resulted in the birth of a

child, and any questions regarding support are hypothetical. The parties are

litigating the disposition of the pre-embryo, not potential support of a potential

child. That issue would require a separate hearing when the issue is squarely

before the court.

[59] At bottom, the trial court applied the appropriate test, balancing the parties’

interests using the appropriate factors.

Conclusion

[60] On the issue of pre-embryo disposition, trial courts should first look to any

existing agreement between the parties to determine whether the parties

memorialized their intentions for the pre-embryos upon their separation or

divorce. If there is no applicable provision, the trial court’s role and discretion

in dividing marital property and determining child custody leads us to conclude

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that balancing the parties’ interests is the most appropriate way to address pre-

embryo disposition upon divorce. But because pre-embryos are entitled to

special respect, factors beyond those outlined in Indiana Code Chapter 31-15-7

must be considered. These additional factors include: (1) the intended use of

the pre-embryos by the party seeking to preserve them; (2) the reasonable ability

of the party seeking implantation to have children through other means; (3) the

parties’ original reasons for undergoing IVF, which may favor preservation over

disposition; (4) the potential burden on the party seeking to avoid becoming a

genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as

leverage in the dissolution proceeding; and (6) other considerations relevant to

the parties’ unique situation.

[61] Here, the trial court applied the appropriate test and considered the appropriate

factors. Accordingly, we affirm.

[62] Affirmed.

Foley, J., and Felix, J., concur.

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