Bilbao v. Goodwin ( 2019 )

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JESSICA BILBAO v. TIMOTHY R. GOODWIN
(SC 20078)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The defendant appealed from the judgment of the trial court dissolving his
marriage to the plaintiff and awarding her certain pre-embryos that the
parties had cryopreserved after having created them through in vitro
fertilization during their marriage. The parties had entered into a storage
agreement with the reproductive services center responsible for cryo-
preserving the pre-embryos. The storage agreement contained checkbox
options that provided for disposition of the pre-embryos under certain
circumstances. The parties checked the box indicating that they agreed
to have the pre-embryos discarded in the event that they divorced,
initialed their selection, and signed the agreement. The plaintiff asked
the trial court to order that the pre-embryos be discarded in accordance
with the storage agreement, whereas the defendant claimed that he had
changed his mind, was no longer bound by that provision of the storage
agreement, and wanted the pre-embryos preserved so that the parties
could have children in the event that they reconciled or, in the alternative,
wanted the pre-embryos to be donated. The trial court determined that
the storage agreement was not enforceable because it lacked consider-
ation. The court then awarded the pre-embryos to the plaintiff, conclud-
ing that the plaintiff’s interest in them outweighed the defendant’s inter-
est. On appeal, the defendant claimed that the trial court incorrectly
determined that a pre-embryo is property subject to distribution under
the statute (§ 46b-81) governing distribution of the marital estate upon
divorce and also claimed that, even if it is property, in the absence of
an enforceable contractual agreement, the court failed to employ a legal
presumption in his favor as the party seeking to preserve the pre-embryos
because they are human beings. Held:
1. This court concluded that the contractual approach to determining the
disposition of a pre-embryo upon divorce, pursuant to which an agree-
ment between progenitors governing the disposition of a pre-embryo
is presumed valid and enforceable in a dispute between them, is the
appropriate first step in such a determination, reasoning that progenitors
should be the primary decision makers regarding the disposition of their
pre-embryos, there are significant benefits to making such a decision
in advance rather than at the moment of disposition, such an approach
is consistent with Connecticut’s public policy and the current practices
of most state courts that have confronted the issue, and various profes-
sional associations focusing on the field of reproductive medicine recom-
mend advance directives regarding the disposition of pre-embryos in
the event of divorce; moreover, this court clarified that such an approach
applies in cases in which an agreement, if enforced, will not result in
procreation and declined to decide whether such an approach would
apply to a scenario in which one party would be compelled to become
a genetic parent against his or her wishes or what approach a court
should take in the absence of an enforceable agreement.
2. The trial court incorrectly determined that the parties had not entered
into an enforceable agreement to discard the pre-embryos upon divorce,
and, accordingly, this court reversed the trial court’s judgment insofar
as that court determined that their agreement was not enforceable,
vacated the trial court’s order awarding the pre-embryos to the plaintiff,
and remanded the case with direction to order the disposition of the
pre-embryos in accordance with the agreement: there was an offer and
an acceptance of definite terms, as each party offered the other the
opportunity to create pre-embryos by contributing gametic material
under the terms of the agreement, and each party accepted the other’s
offer by signing the agreement and contributing gametic material; more-
over, the trial court’s determination that the storage agreement lacked
consideration was clearly erroneous, as the plaintiff and the defendant
made mutual promises to contribute gametic material, and the reproduc-
tive services center promised to store the pre-embryos in exchange for
the certainty provided by the parties’ election of a disposition in the
event of the parties’ divorce; furthermore, the trial court’s focus on the
checkbox nature of the storage agreement to conclude that the agree-
ment was unenforceable was misplaced, as agreements in which parties
use checkboxes to indicate their rights and responsibilities are not
insufficient for that reason alone, checkboxes, sometimes accompanied
by the parties’ initials, are routinely used in important and binding legal
documents, and any suggestion that the checkboxes were evidence that
the parties had not seriously considered the matter of disposition was
contradicted by the storage agreement and the parties’ testimony.
3. This court having determined that there was an enforceable agreement,
the defendant could not prevail on his claims that, in the absence of a
contractual agreement, a pre-embryo is not property within the meaning
of § 46b-81 because it is a human life or, if it is deemed property, that
the trial court should have applied a presumption in favor of preserving
the pre-embryos, as those claims incorrectly presupposed that there
was no enforceable contract between the parties; moreover, to the extent
that the defendant claimed that an agreement that provides for the
disposition of a pre-embryo is unenforceable on the ground that a pre-
embryo is a human life, this court declined to review that claim for lack
of an adequate record, as the defendant did not raise such a claim at
trial and did not even appear to make that argument on appeal.
Argued April 30—officially released November 5, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Nastri, J.; judg-
ment dissolving the marriage and granting certain other
relief, from which the defendant appealed. Reversed in
part; vacated in part; order directed.
Joseph P. Secola, with whom, on the brief, was Timo-
thy R. Goodwin, self-represented, for the appellant
(defendant).
Scott T. Garosshen, with whom were Brendon P.
Levesque and, on the brief, Michael S. Taylor, for the
appellee (plaintiff).
Leslie I. Jennings-Lax and Louise T. Truax filed
a brief for the Connecticut Chapter of the American
Academy of Matrimonial Lawyers as amicus curiae.
Rita Louise Lowery Gitchell, pro hac vice, Philip S.
Walker and Joanne F. Davis filed a brief for the Ameri-
can Association of Pro-Life Obstetricians and Gynecolo-
gists as amicus curiae.
Opinion
D’AURIA, J. In this appeal, we are called on to deter-
mine how pre-embryos created through in vitro fertiliza-
tion should be distributed upon the divorce of their
progenitors. The plaintiff, Jessica Bilbao, and the defen-
dant, Timothy R. Goodwin, were married and under-
went in vitro fertilization in an effort to have children.
Several pre-embryos resulting from that treatment were
stored for implantation in the future.1 As part of a stor-
age agreement with the fertility clinic, the parties
unequivocally stated that they wanted the pre-embryos
discarded if they ever divorced. Their marriage has
since been dissolved, and the plaintiff now seeks to
have the pre-embryos discarded in accordance with
the storage agreement. The defendant argues that the
agreement is unenforceable, however, and wants the
pre-embryos preserved or donated. The trial court con-
cluded that the storage agreement was unenforceable
but awarded the pre-embryos to the plaintiff. We con-
clude that the storage agreement is enforceable and,
therefore, reverse the trial court’s judgment insofar as
the court determined that the agreement was not
enforceable.
The record reveals the following undisputed facts
as found by the trial court and contained in exhibits
submitted by the parties. The parties were married in
2011. Soon after, they began efforts to have a child
through in vitro fertilization with the assistance of the
University of Connecticut School of Medicine’s Center
for Advanced Reproductive Services (center). The treat-
ment produced several pre-embryos, one of which was
transferred to the plaintiff’s uterus and resulted in the
birth of a child. The center cryopreserved the remaining
pre-embryos.2
Originally, the parties had planned to have another
child using the remaining pre-embryos. But, together,
they also planned for certain contingencies by entering
into a storage agreement with the center: a four page
form entitled ‘‘Consent for Cryopreservation and Stor-
age of Embryos’’ that provided for the disposition of
the pre-embryos upon death or divorce. Specifically,
the agreement offered four checkbox options relative
to divorce: leave the pre-embryos to the female party,
to the male party, to a third-party designee of their
choice, or have them ‘‘discarded according to American
Society for Reproductive Medicine Ethical Guidelines.’’
The parties opted to have the pre-embryos discarded,
which they manifested by checking the appropriate box,
initialing that selection, and signing the agreement in
full on the next page. The parties also acknowledged
in the agreement that they had discussed the agreement
with a physician, and the agreement provided that the
parties could modify their selection through written
consent signed by both of them.
In September, 2016, the plaintiff filed this action for
dissolution of marriage. With the assistance of counsel,
the parties reached a settlement agreement that
resolved all of their disputes except for the allocation
of debt from a home loan and the disposition of the
pre-embryos. The debt allocation is not part of this
appeal. Regarding the pre-embryos, the plaintiff asked
the trial court to order that they be discarded in accor-
dance with the storage agreement. The defendant
wanted the pre-embryos preserved so that the parties
could try to have additional children in the event they
reconciled or, alternatively, wanted the pre-embryos to
be put up for adoption.3
The record also reveals the following procedural his-
tory. Although the parties each had counsel in drafting
the settlement agreement, they represented themselves
in this matter before the trial court. To resolve the
disputes regarding the debt allocation and pre-embryos,
the trial court held a brief proceeding at which both
parties testified. The plaintiff submitted the settlement
agreement and storage agreement as exhibits, but nei-
ther party filed a substantive motion, submitted a brief,
or argued legal matters to the court.
The trial court issued a memorandum of decision in
which it incorporated the settlement agreement and
resolved the debt dispute. Regarding the pre-embryos,
it determined that the storage agreement was not
enforceable. In the absence of an enforceable agree-
ment, the court proceeded as if the pre-embryos were
‘‘property’’ subject to distribution under General Stat-
utes § 46b-81,4 concluded that the plaintiff’s interest in
the pre-embryos outweighed the defendant’s interest
and, therefore, awarded them to her.
The defendant appealed to the Appellate Court from
the trial court’s judgment awarding the pre-embryos to
the plaintiff. The appeal was then transferred to this
court. See General Statutes § 51-199 (c); Practice Book
§ 65-1.
On appeal, the defendant appears to make two claims
of error, both of which presuppose that the trial court
correctly determined that the parties lacked an enforce-
able agreement. The defendant agrees with this portion
of the trial court’s analysis but disagrees with the trial
court’s determination that the plaintiff’s interest in the
pre-embryos outweighed his interest. Specifically, both
of the defendant’s claims are rooted in his factual prem-
ise that a pre-embryo is a human being. First, he claims
that the trial court incorrectly determined that a pre-
embryo is ‘‘property’’ subject to distribution under
§ 46b-81. Specifically, he argues that a pre-embryo is
human life and, as such, must be awarded to the party
seeking to preserve it. Second, he claims that, even if
a pre-embryo is property under § 46b-81, the trial court
improperly failed to employ a legal presumption in favor
of the party seeking to preserve it because it is a
human being.5
In response, the plaintiff argues that the trial court
was incorrect that the parties had no enforceable agree-
ment and, therefore, urges us to affirm the judgment
on this alternative ground. See Practice Book §§ 63-4
and 84-11. We agree with the plaintiff that the parties’
agreement providing for the disposition of their pre-
embryos upon divorce is enforceable. Our holding nec-
essarily defeats the defendant’s claims, which are prem-
ised on the prerequisite determination that the contract
was unenforceable. To the extent that the defendant’s
claims include an argument that a contract requiring
the destruction of pre-embryos is unenforceable as a
matter of public policy because a pre-embryo is a human
being, we find this issue unreviewable because he failed
to present any evidence at trial to support the factual
premise that a pre-embryo is a human being. See foot-
notes 5 and 8 of this opinion.
As a predicate to the defendant’s claims, we first
must determine whether the parties’ storage agreement,
which unambiguously provided that the pre-embryos
should be discarded in the event of divorce, is enforce-
able between the plaintiff and the defendant. The trial
court held that it was not enforceable because it lacked
consideration and indicated the parties’ disposition
selection in the form of a checkbox. The defendant
agrees with the trial court’s analysis. The plaintiff
argues that the agreement was supported by consider-
ation and that the checkbox nature of the agreement
did not render it insufficient. We agree with the plaintiff.
The following additional procedural history is rele-
vant. At trial, the enforceability of the storage agree-
ment was central to the dispute, and the parties’ respec-
tive positions were clear. The plaintiff submitted the
storage agreement as evidence and stated that she
wanted its terms enforced, as the parties had originally
agreed. The defendant admitted that he originally had
agreed to discard the pre-embryos if the couple ever
divorced but argued that he had since changed his mind
and that this provision of the agreement no longer
bound him.
In its memorandum of decision, the trial court noted
the lack of Connecticut authority on this issue, consid-
ered the law in other jurisdictions, and adopted a two
step approach to resolve the dispute. First, it would
decide whether the parties had an enforceable agree-
ment that provided for the disposition of the pre-
embryos. Second, in the absence of an agreement, it
would balance their respective interests in the pre-
embryos. In conducting the first step, the trial court
concluded that the consent form was not an enforceable
agreement because it ‘‘was little more than a ‘check the
box questionnaire,’ which had ‘‘neither consideration
nor a promise.’’ It then proceeded to the second step,
determined that the plaintiff’s interests in the pre-
embryos outweighed the defendant’s interests, and
awarded them to her.
In the sections of this opinion that follow, we describe
the current state of the law on pre-embryo disposition
upon divorce and conclude that the trial court properly
considered whether the parties had an enforceable
agreement, but we also conclude that the trial court
incorrectly determined that the storage agreement was
unenforceable. We also clarify the narrow scope of
our decision.
I
There are three leading approaches to determining
the disposition of a pre-embryo upon divorce: (1) the
contractual approach, (2) the balancing approach, and
(3) the contemporaneous mutual consent approach.
Each approach attempts to resolve disputes between
progenitors by emphasizing different policies: the pro-
genitors’ autonomy in deciding the fate of pre-embryos
created with their own gametic material, the reality that
progenitors may change their minds as time passes,
or both.
Under the contractual approach, an agreement
between progenitors governing disposition of the pre-
embryos is presumed valid and enforceable in a dispute
between them. E.g., In re Marriage of Rooks, 429 P.3d
579, 595 (Colo. 2018), cert. denied sub nom. Rooks v.
Rooks, U.S. , 139 S. Ct. 1447, 203 L. Ed. 2d
681 (2019). These agreements often appear as consent
forms or storage agreements between progenitors and
a fertility clinic. E.g., id., 587.
Proponents of the contractual approach primarily
argue that this approach allows ‘‘the progenitors—not
the [s]tate and not the courts . . . [to] make this deeply
personal life choice.’’ Kass v. Kass, 91 N.Y.2d 554, 566,
696 N.E.2d 174, 673 N.Y.S. 2d 350 (1998). They also note
that, by validating and enforcing a contract based rule,
the approach promotes serious discussion between the
progenitors in advance of divorce, gives progenitors
and storage facilities a measure of certainty to plan
for the future, and helps avoid costly and emotionally
taxing litigation. See, e.g., Terrell v. Torres, 246 Ariz.
312, 318, 438 P.3d 681 (App. 2019), review granted,
Arizona Supreme Court, Docket No. CV-19-0106-PR
(August 27, 2019); Szafranski v. Dunston, 993 N.E.2d
502, 515 (Ill. App.), appeal denied, 996 N.E.2d 24 (Ill.
2013); Kass v. Kass, supra, 565–66.
Critics of this approach focus on the fact that pre-
embryos can be stored indefinitely and that progenitors
might change their minds about disposition as time
passes. E.g., Terrell v. Torres, supra, 246 Ariz. 318 (con-
tractual approach ignores ‘‘numerous uncertainties
inherent in the [in vitro fertilization] process that extend
. . . the viability of [embryos] indefinitely and allow
. . . time for minds, and circumstances, to change’’
[internal quotation marks omitted]); In re Marriage of
Witten, 672 N.W.2d 768, 777 (Iowa 2003) (contractual
approach ‘‘binds individuals to previous obligations,
even if their priorities or values change’’ [internal quota-
tion marks omitted]). For some commentators, the fail-
ure to account for changed circumstances can be so
great that dispositional agreements ‘‘smack of uncon-
scionability.’’ E. Waldman, ‘‘Disputing Over Embryos:
Of Contracts and Consents,’’ 32 Ariz. St. L.J. 897, 926
(2000).
Under the balancing approach, a court weighs each
progenitor’s interest in the pre-embryos. Factors to con-
sider include the intended use of the pre-embryos, the
ability of each respective spouse to reproduce through
other means, reasons for pursuing in vitro fertilization,
emotional consequences, and bad faith. See, e.g., In re
Marriage of Rooks, supra, 429 P.3d 588, 592–93.
New Jersey has adopted this approach as the first
and only step in resolving disputes over the disposition
of pre-embryos upon divorce. See J.B. v. M.B., 170 N.J.
9, 29, 783 A.2d 707 (2001). The New Jersey Supreme
Court has emphasized that it permits progenitors to
reconsider their initial stances up to the point of disposi-
tion, which is consistent with that state’s public policy
of preserving parental rights ‘‘in all but statutorily
approved circumstances.’’ Id., 27. But most courts use
the balancing approach as a second step, only to be
employed after it is determined that no enforceable
agreement between the progenitors exists and, thus,
that the contractual approach does not resolve the
issue. See, e.g., In re Marriage of Rooks, supra, 429
P.3d 593; Reber v. Reiss, 42 A.3d 1131, 1136 (Pa. Super.),
appeal denied, 619 Pa. 680, 62 A.3d 380 (2012); Davis
v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992), cert. denied
sub nom. Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259,
122 L. Ed. 2d 657 (1993). This is because the balancing
approach ultimately puts the disposition of a pre-
embryo in the hands of a court and not in the hands
of the progenitors.
Under the contemporaneous mutual consent
approach, both progenitors must agree to a disposition
at the time of the disposition. See In re Marriage of
Witten, supra, 672 N.W.2d 783 (‘‘no transfer, release,
disposition, or use of the embryos can occur without
the signed authorization of both donors’’). If the parties
do not agree, the pre-embryos remain in storage indefi-
nitely. See id.This third approach attempts to accommodate the
competing principles driving both the contractual
approach—progenitors, not courts, should decide the
disposition of their pre-embryos—and the balancing
approach—progenitors should be allowed to change
their minds at any point. Id., 782. Only Iowa has affirma-
tively adopted this approach, however. See id., 783; see
also McQueen v. Gadberry, 507 S.W.3d 127, 157 (Mo.
App. 2016) (upholding trial court decision that relied
on contemporaneous mutual consent approach when
parties had no enforceable agreement). Other courts
have criticized the contemporaneous mutual consent
approach as ‘‘totally unrealistic’’; Reber v. Reiss, supra,42 A.3d 1135 n.5; see also id. (‘‘[i]f the parties could
reach an agreement, they would not be in court’’); and
unfair because it ‘‘gives one party a de facto veto over
the other party by avoiding any resolution until the
issue is eventually mooted by the passage of time’’ and
creates ‘‘incentives for one party to leverage his or her
power . . . .’’ In re Marriage of Rooks, supra, 429
P.3d 589.
A majority of states that have addressed the issue
employ the contractual approach as the first step in
resolving a dispute over pre-embryos upon divorce. To
date, courts in eight states have done so. See Terrell v.
Torres, supra, 246 Ariz. 320; In re Marriage of Rooks,
supra, 429 P.3d 592; Szafranski v. Dunston, supra, 993
N.E.2d 514; Kass v. Kass, supra, 91 N.Y.2d 564–66; In
re Marriage of Dahl, 222 Or. App. 572, 583, 194 P.3d
834 (2008), review denied, 346 Or. 65, 204 P.3d 95 (2009);
Davis v. Davis, supra, 842 S.W.2d 597; Roman v.
Roman, 193 S.W.3d 40, 50 (Tex. App. 2006), review
denied, Texas Supreme Court, Docket No. 06-554
(August 24, 1997), cert. denied, 552 U.S. 1258, 128 S.
Ct. 1662, 170 L. Ed. 2d 356 (2008); Litowitz v. Litowitz,
146 Wn. 2d 514, 528, 48 P.3d 261 (2002), cert. denied,
537 U.S. 1191, 123 S. Ct. 1271, 154 L. Ed. 2d 1025 (2003).
Courts in two states have expressly reserved decision
on whether to adopt the contractual approach because
an enforceable contract did not exist in the cases in
which the question arose. See McQueen v. Gadberry,
supra, 507 S.W.3d 156 n.32; id., 157 (upholding trial court
decision relying on contemporaneous mutual consent
approach); Reber v. Reiss, supra, 42 A.3d 1136 (applying
balancing approach). One state court has expressly
declined to enforce a contract that was to result in the
implantation of pre-embryos but reserved decision on
whether it would enforce a contract that would result
in the discarding of pre-embryos. See A.Z. v. B.Z., 431
Mass. 150, 159, 160 n.22, 725 N.E.2d 1051 (2000) (uphold-
ing trial court’s decision relying on balancing
approach). And, as we discussed previously, two state
courts have expressly rejected the contractual
approach in favor of either the balancing approach; see
J.B. v. M.B., supra, 170 N.J. 29–30; or the contemporane-
ous mutual consent approach. See In re Marriage of
Witten, supra, 672 N.W.2d 783.
II
The standard of review applicable to the enforceabil-
ity of dispositional agreements presents a question of
law; therefore, our review is plenary. See, e.g., Bedrick
v. Bedrick, 300 Conn. 691, 697, 17 A.3d 17 (2011). We
conclude that the contractual approach is the appro-
priate first step in determining the disposition of pre-
embryos upon divorce for several reasons.
First, we agree with courts adopting the contractual
approach that, when possible, progenitors should be
the primary decision makers regarding disposition of
their pre-embryos. This ‘‘maximize[s] procreative lib-
erty by reserving to the progenitors the authority to
make what is in the first instance a quintessentially
personal, private decision.’’ Kass v. Kass, supra, 91
N.Y.2d 565. It ‘‘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.’’ Davis v. Davis, supra,842 S.W.2d 597.
Second, there are significant benefits to making this
decision in advance, rather than at the moment of dispo-
sition. Preexisting agreements ‘‘promote serious discus-
sions between the parties prior to participating in in
vitro fertilization’’; Szafranski v. Dunston, supra, 993
N.E.2d 515; and manifest choices ‘‘made before disputes
erupt . . . .’’ Kass v. Kass, supra, 91 N.Y.2d 566. This
‘‘minimize[s] misunderstandings’’ that might arise in the
future, provides certainty for progenitors and fertility
clinics, and decreases the likelihood of litigation. Id.,
565; see also Szafranski v. Dunston, supra, 515.
Of course, as in the present case, progenitors might
change their preferences for disposition as time passes.
Although the contractual approach prioritizes progeni-
tor autonomy and certainty over an absolute ability to
change one’s mind, as offered by the balancing and
contemporaneous mutual consent approaches, advance
directives that permit joint, written modifications
address this concern by offering a measure of flexibility.
See, e.g., Terrell v. Torres, supra, 246 Ariz. 319 (‘‘[c]ourts
have addressed these concerns by permitting parties
to subsequently jointly modify their initial agreement’’);
Kass v. Kass, supra, 91 N.Y.2d 566 (‘‘advance directives,
subject to mutual change of mind that must be jointly
expressed, both minimize misunderstandings and max-
imize procreative liberty by reserving to the progenitors
the authority to make what is in the first instance a
quintessentially personal, private decision’’); Davis v.
Davis, supra, 842 S.W.2d 597 (‘‘[p]roviding that the ini-
tial agreements may later be modified by agreement
will, we think, protect the parties against some of the
risks they face in this regard’’); Roman v. Roman, supra,193 S.W.3d 50 (allowing parties voluntarily to decide
disposition of frozen embryos in advance of cryopreser-
vation, subject to mutual change of mind, jointly
expressed, best serves public policy and parties’ inter-
ests). This seems particularly reasonable in light of the
asymmetrical consequences, under the contemporane-
ous mutual consent approach, of changing one’s mind.
To the extent one party benefits from the option to
change his or her dispositional preference, the other
party is deprived of the agreement he or she originally
bargained for and relied on in agreeing to create the
pre-embryos.
Third, the contractual approach is consistent with
Connecticut’s public policy. By statute, a fertility clinic
must provide a progenitor with ‘‘timely, relevant and
appropriate information sufficient to allow that person
to make an informed and voluntary choice regarding
the disposition of any embryos,’’ including ‘‘the option
of storing, donating to another person, donating for
research purposes, or otherwise disposing of any
unused embryos . . . .’’ General Statutes § 32-41jj (c)
(1) and (2). Moreover, the contractual approach is con-
sistent with the state’s well settled policy of enforcing
intimate partner agreements; see, e.g., General Statutes
§ 46b-66 (settlement agreement); General Statutes
§ 46b-36g (premarital agreement); Bedrick v. Bedrick,
supra, 300 Conn. 698–99 (postnuptial agreement);
Boland v. Catalano, 202 Conn. 333, 342, 521 A.2d 142(1987) (agreement between unmarried cohabitants);
and gestational agreements. See, e.g., General Statutes
§ 7-48a (permitting intended parents in gestational
agreement to obtain birth certificate). In many cases,
these agreements ‘‘encourage the private resolution of
family issues. In particular, they may allow couples to
eliminate a source of emotional turmoil . . . .’’ Bedrick
v. Bedrick, supra, 698.
Fourth, the contractual approach accords with the
current practices of most state courts that have con-
fronted the issue. As discussed previously, a substantial
majority of state courts that have addressed the pre-
embryo disposition issue have applied the contractual
approach when an enforceable contract exists. See part
I of this opinion. The contractual approach furthers this
policy of informed consent regarding the disposition of
pre-embryos. Moreover, at least one state legislature
requires progenitors to enter into disposition agree-
ments; Fla. Stat. Ann. § 742.17 (West 2016); and, as
in Connecticut, at least three other state legislatures
require that fertility clinics provide progenitors with
options for disposition in the event of various contin-
gencies. See Cal. Health & Safety Code § 125315 (Deer-
ing 2012); Mass. Gen. Laws Ann. c. 111L, § 4 (LexisNexis
2018); N.J. Stat. Ann. § 26:2Z-2 (West 2018). But see,
e.g., Ariz. Rev. Stat. Ann. § 25-318.03 (A) (1) (2018) (in
divorce proceeding, awarding pre-embryo ‘‘to spouse
who intends to allow the in vitro human pre-embryos
to develop to birth,’’ regardless of disposition agree-
ment); La. Stat. Ann. § 9:129 (Supp. 2018) (‘‘[a] viable
in vitro fertilized human ovum is a juridical person
which shall not be intentionally destroyed’’).
Finally, various professional associations focusing
on the field of reproductive medicine recommend that
progenitors provide advance directives regarding dis-
position of their pre-embryos in various scenarios,
including divorce. E.g., Ethics Committee of the Ameri-
can Society for Reproductive Medicine, ‘‘Disposition
of Abandoned Embryos: A Committee Opinion,’’ 99
Fertility & Sterility 1848, 1848 (2013), available at
https://www.asrm.org/globalassets/asrm/asrm-content/
news-and-publications/ethics-committee-opinions/
disposition_of_abandoned_embryos-pdfmembers.pdf
(last visited October 29, 2019); see also American Medi-
cal Association, Code of Medical Ethics (2017) Opinion
4.2.5, pp. 70–71. Advance directives provide practical
certainty for storage facilities, reduce the likelihood of
abandonment, and ensure that facilities will be able to
satisfy their ethical obligations.
Therefore, we conclude that, in the absence of formal
legislative guidance on the question, the contractual
approach is the appropriate first step in determining
the disposition of pre-embryos upon divorce. As set
forth in part IV of this opinion, we do not decide how
a court should determine the disposition of pre-embryos
in the absence of an enforceable agreement.
III
Finally, we conclude that the trial court incorrectly
determined that the parties had not entered into an
enforceable agreement in this case.
As set forth previously, the trial court concluded that
the storage agreement was not an enforceable contract
because it ‘‘was little more than a ‘check the box ques-
tionnaire,’ ’’ which had ‘‘neither consideration nor a
promise.’’ In support of this conclusion, it cited Rucker
v. Rucker, Docket No. A16-0942, 2016 WL 7439094(Minn. App. December 27, 2016).
Although a disposition agreement between progeni-
tors is presumed enforceable between them; e.g., In re
Marriage of Rooks, supra, 429 P.3d 592; there must be
an offer and acceptance of definite terms. See, e.g.,
Saint Bernard School of Montville, Inc. v. Bank of
America, 312 Conn. 811, 830, 95 A.3d 1063 (2014). Also,
‘‘a contract must be supported by valuable consider-
ation.’’ Connecticut National Bank v. Voog, 233 Conn.
352, 366, 659 A.2d 172 (1995). ‘‘Consideration consists
of a benefit to the party promising, or a loss or detriment
to the party to whom the promise is made.’’ (Internal
quotation marks omitted.) Viera v. Cohen, 283 Conn.
412, 440–41, 927 A.2d 843 (2007). ‘‘[T]he exchange of
promises is sufficient consideration . . . .’’ Christo-
phersen v. Blount, 216 Conn. 509, 511 n.3, 582 A.2d 460(1990). In the present case, the trial court found that
there were no promises exchanged between the parties
and no consideration. To the extent that the trial court
found that there was no exchange of promises and, thus,
no consideration, we review the trial court’s findings
for clear error. See, e.g., Viera v. Cohen, supra, 442; see
also id. (whether agreement is supported by consider-
ation is factual issue reviewed under clearly erroneous
standard). To the extent that the trial court found that
there was insufficient consideration, our review is ple-
nary. See, e.g., Milaneseo v. Calvanese, 92 Conn. 641,
643, 103 A. 841 (1918) (adequacy of consideration is
conclusion of law subject to plenary review).6
Neither party contests the existence of their offer
and acceptance of definite terms. They each offered
one another the opportunity to create pre-embryos by
contributing gametic material under the terms spelled
out in the agreement, including the unambiguous condi-
tion that the pre-embryos would be discarded if they
ever divorced. Each party accepted this offer by signing
the agreement, even specifically indicating their ‘‘under-
stand[ing], agree[ment] and consent’’ that the pre-
embryos would be discarded upon divorce by initialing
directly below that option in the agreement. If there
was any doubt, they further indicated their assent by
performing (i.e., their contribution of gametic material).
Moreover, the parties do not dispute that, to the
extent that they entered into a contract, the contract
is enforceable as against each other. We note that other
jurisdictions have determined that a pre-embryo storage
agreement, entered into by a fertility clinic and the
progenitors, that provides for the disposition of the pre-
embryos is presumed enforceable not only against the
clinic but also as between the progenitors. See Kass
v. Kass, supra, 91 N.Y.2d 565 (‘‘[a]greements 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’’); see also In re Marriage of Rooks, supra, 429
P.3d 592 (holding ‘‘that a court should look first to
any existing agreement expressing the spouses’ intent
regarding disposition of the couple’s remaining pre-
embryos in the event of divorce’’); Roman v. Roman,
supra, 193 S.W.3d 48 (noting that case law evinces
‘‘emerging majority view that written embryo agree-
ments between embryo donors and fertility clinics . . .
are valid and enforceable’’).
The trial court’s finding that the storage agreement
lacked a mutual exchange of promises between the
plaintiff and the defendant and, thus, lacked consider-
ation was clearly erroneous for three reasons. First, the
parties made mutual promises to contribute gametic
material. Specifically, in exchange for the plaintiff’s
promise to contribute gametic material under the terms
of the agreement, the defendant promised to contribute
gametic material under the terms of the agreement,
and vice versa. Moreover, in exchange for the certainty
provided by the parties’ election of a disposition in the
event of divorce, the center promised to store the pre-
embryos. Thus, all parties to the agreement received
consideration. Additionally, to the extent that the trial
court found that this exchange of promises was inade-
quate consideration, as a matter of law, we disagree.
Although no court has directly addressed the issue in
the context of pre-embryo disposition agreements,
courts and commentators have opined that this
exchange of promises is sufficient. See, e.g., Roman v.
Roman, supra, 193 S.W.3d 50 n.14 (‘‘consideration in
embryo agreements is the gamete donation process that
both husband and wife experience’’); D. Forman,
‘‘Embryo Disposition and Divorce: Why Clinic Consent
Forms Are Not the Answer,’’ 24 J. Am. Acad. Matrim.
Law. 57, 103 n.180 (2011) (‘‘contracts also typically
require consideration, which in this type of case may
be provided by the gamete donation process undergone
by both husband and wife’’). Generally, though, it is
well settled that ‘‘the exchange of promises is sufficient
consideration . . . .’’ Christophersen v. Blount, supra,
216 Conn. 511 n.3.
Second, the trial court’s focus on the checkbox nature
of the storage agreement to conclude that the agree-
ment was unenforceable was misplaced. An agreement
in which parties indicate rights or responsibilities by
checking a box is not insufficient for that reason alone.
Checkboxes, sometimes accompanied by the parties’
initials, are routinely used in a wide range of important
and legally binding documents. Even Connecticut trial
courts ‘‘routinely use’’ checkbox forms to issue legally
binding orders. In re Leah S., 284 Conn. 685, 687 n.2,
935 A.2d 1021 (2007). In the context of pre-embryo
disposition agreements, several courts have held that
the agreements were enforceable when progenitors
indicated a disposition choice in some manner other
than by writing it out in full. See, e.g., Terrell v. Torres,
supra, 246 Ariz. 316 (progenitors ‘‘selected and initialed’’
next to disposition choice); Kass v. Kass, supra, 91
N.Y.2d 566–67 (progenitors signed consents indicating
their dispositional intent). Moreover, any suggestion
that the checkboxes were evidence that the parties had
not seriously considered the issue is contradicted by
the storage agreement itself and the testimony of
both parties.7
Third, the trial court’s reliance on Rucker v. Rucker,
supra, 2016 WL 7439094, also was misplaced. That case
involved a storage agreement between progenitors and
a fertility clinic that included a checkbox term providing
for ‘‘ ‘transfer’ ’’ of the pre-embryos upon divorce. Id.,
*9. The Minnesota Court of Appeals held that the trial
court had misinterpreted the word ‘‘transfer.’’ Id., *10.
The appeals court then provided the correct interpreta-
tion and remanded the case to the trial court to decide
how the pre-embryos should be distributed in light of
this new interpretation. Id., *11. The court did not even
remotely suggest that the checkbox nature of the agree-
ment was relevant (much less significant), as the trial
court did in this case. See id., *9–11.
Therefore, we conclude that the parties had an
enforceable agreement.
Because we determine that there was an enforceable
contract, the defendant’s claims that, in the absence of a
contractual agreement, a pre-embryo is not ‘‘property’’
under § 46b-81 because it is a human life or, if it is
‘‘property,’’ that a trial court should employ a presump-
tion in favor of its preservation because it is a human
life, necessarily fail. The defendant’s claims presuppose
that there was no enforceable contract. The defendant
does not argue that if there is an enforceable contract,
there should be a presumption in favor of preservation.
Thus, because we determine that there was an enforce-
able contract, the defendant’s claims that the trial court
should have either awarded the pre-embryos to the
party seeking to preserve them or applied a presump-
tion in favor of preservation fail.
To the extent that the defendant responds that there
is no enforceable contract because, as a general matter
of law, any agreement providing for the disposition of
a pre-embryo, which constitutes human life, is unen-
forceable, the claim is not reviewable because it was not
preserved at trial, and, therefore, we lack an adequate
record to address it. See footnotes 5 and 8 of this opin-
ion. The defendant did not argue at trial that the agree-
ment was unenforceable because it concerned a human
life. Even if we generously construe his testimony as
legal argument, we conclude that he did not broach
this issue. Rather, his sole point was that he should be
permitted to change his mind. Nor does he even appear
to make this argument on appeal other than through his
general contention that a pre-embryo is a human being.
Whether a pre-embryo is a human being is, at least
in part, a question of fact. It is certainly not a question
an appellate court can determine without some measure
of fact-finding.8 The defendant concedes this. Neverthe-
less, he offered no evidence at trial to establish it. Fur-
ther, to the extent that this claim might implicate consti-
tutional rights, it would be reviewable under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989);
see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015) (modifying third condition of Golding); only if
it were supported by an adequate record. For the rea-
sons just stated, however, it is not supported by an
adequate record. Accordingly, we decline to review
this claim.
IV
We make two additional points to clarify the scope
of our holding. First, our decision applies 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 con-
tract would be unenforceable for other reasons, includ-
ing public policy.
Second, because we conclude that the parties in this
case had an enforceable agreement, we do not decide
what a court must do in the absence of an enforceable
agreement. For example, we leave for another day
whether, in the absence of an enforceable agreement,
balancing or contemporaneous mutual consent is the
appropriate approach, and what the details of such an
approach would entail.
The judgment is reversed insofar as the trial court
determined that the parties’ storage agreement is not
enforceable, the trial court’s order awarding the pre-
embryos to the plaintiff is vacated, and the case is
remanded with direction to order the disposition of the
pre-embryos in accordance with the storage agreement;
the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1
Although the parties did not introduce any scientific evidence at trial,
like other courts, we take judicial notice of the following basic facts of in
vitro fertilization: ‘‘Typically the [in vitro fertilization] procedure begins with
hormonal stimulation of a woman’s ovaries to produce multiple eggs. The
eggs are then removed by laparoscopy or ultrasound-directed needle aspira-
tion and placed in a glass dish, where sperm are introduced. Once a sperm
cell fertilizes the egg, this fusion, or pre-zygote, divides until it reaches the
four-to-eight cell stages, after which several pre-zygotes are transferred to
the woman’s uterus by a cervical catheter. If the procedure succeeds, an
embryo will attach itself to the uterine wall, differentiate, and develop into
a fetus. As an alternative to immediate implantation, pre-zygotes may be
cryopreserved indefinitely in liquid nitrogen for later use. Pre-embryo is a
medically accurate term for a zygote or fertilized egg that has not been
implanted in a uterus. It refers to the approximately 14-day period of develop-
ment from fertilization to the time when the embryo implants in the uterine
wall and the primitive streak, the precursor to the nervous system, appears.
An embryo proper develops only after implantation. The term frozen
embryos is a term of art denoting cryogenically preserved pre-embryos.’’
(Internal quotation marks omitted.) McQueen v. Gadberry, 507 S.W.3d 127,
134 n.4 (Mo. App. 2016).
2
The parties were aware that some of the pre-embryos resulting from the
treatment might not be transferred to the plaintiff’s uterus immediately and
could require storage. The storage agreement with the center, which we
will discuss in more detail, informed them: ‘‘If numerous eggs are retrieved
during our (my) cycle, the number of eggs exposed to sperm will be decided
by us (me) and our (my) doctor. If we (I) elect to expose most or all of
our (my) eggs to sperm in order to develop as many embryos as possible,
any viable embryos not transferred to the uterus will be frozen (cryopre-
served). . . . [I]f we (I) have a miscarriage, or if a successful pregnancy
does occur but we (I) subsequently desire another child, the frozen embryos
will be available to us (me) for thawing and transfer during a subsequent
menstrual cycle. This procedure may be repeated until all the frozen embryos
have been utilized.’’
3
‘‘[A]lternative methods to preembryo destruction that are currently avail-
able . . . include preembryo donation for procreation (essentially, a form
or preembryo ‘adoption’) . . . .’’ O. Lin, ‘‘Bioethics and the Disposition of
Cryopreserved Preembryos: Why Autonomy-Based Contract Theory Does
Not Work,’’ 34 Fam. Advoc. 38, 40 (2011).
4
General Statutes § 46b-81 provides in relevant part: ‘‘(a) At the time of
. . . dissolving a marriage . . . the Superior Court may assign to either
spouse all or any part of the estate of the other spouse. . . .
‘‘(c) In fixing the nature and value of the property, if any, to be assigned,
the court, after considering all the evidence presented by each party, shall
consider the length of the marriage, the causes for the . . . dissolution of
the marriage or legal separation, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational skills, education,
employability, estate, liabilities and needs of each of the parties and the
opportunity of each for future acquisition of capital assets and income. The
court shall also consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of their respective estates.’’
Although the trial court did not cite § 46b-81, we assume it applied this
statute because it considered several of the factors enumerated in that
statute and held that the pre-embryos were the ‘‘property’’ of the plaintiff.
Regarding § 46b-81, we have stated: ‘‘[T]he trial court need not give each
factor equal weight . . . or recite the statutory criteria that it considered
in making its decision or make express findings as to each statutory factor
. . . .’’ (Internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348,
355, 880 A.2d 872 (2005).
5
We note that the defendant’s precise concerns on appeal are not clear.
He was not represented by counsel in proceedings before the trial court.
On appeal, he submitted his principal brief without counsel, and his only
request for relief was that this court ‘‘certify’’ his case to the United States
Supreme Court as a vehicle for that court’s reconsideration of Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The defendant then
retained counsel, who submitted a reply brief on his behalf (which made
the claims set forth previously for reversal of the trial court’s judgment)
and represented him at oral argument before this court. At oral argument,
the defendant’s counsel also withdrew his client’s original request to certify
the case to the United States Supreme Court.
The appeal, construed strictly, could be considered moot because this
court cannot grant the defendant his only claim for relief. See, e.g., Seymour
v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002).
This court is not capable of granting the defendant’s original request for
relief, as the United States Supreme Court does not accept certified cases
or questions from state courts. Cf. U.S. Sup. Ct. R. 19 (‘‘[a] United States
court of appeals may certify to this [c]ourt a question or proposition of law
on which it seeks instruction’’). This request also was withdrawn. Further,
it is well established that we are not obligated to review claims raised for
the first time in a reply brief. E.g., Reardon v. Zoning Board of Appeals,
311 Conn. 356, 367 n.10, 87 A.3d 1070 (2014).
Mindful that we construe our rules of practice liberally, especially when
a party is self-represented, we will, in this case, consider the claims that
the defendant raised in his reply brief, but only to the extent that they do
not prejudice the plaintiff and the record supports our review. See Practice
Book § 60-1; Oliphant v. Commissioner of Correction, 274 Conn. 563, 569,
877 A.2d 761 (2005) (‘‘Connecticut courts [are] to be solicitous of pro se
litigants and when it does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the pro se party’’ [internal
quotation marks omitted]). The plaintiff has not asked us to do otherwise.
6
We also note that intimate partner contracts generally warrant ‘‘special
scrutiny . . . .’’ Bedrick v. Bedrick, supra, 300 Conn. 703. This is justified
by, among other things, the nature of these intimate relationships, in which
partners tend to be less cautious in contracting with one another than they
would be in contracting with others; id.; and by the recognition that events
may occur before the dissolution of the relationship that go beyond their
contemplation at the time they entered into the agreement. See McHugh v.
McHugh, 181 Conn. 482, 485–86, 436 A.2d 8 (1980). Although we see no
abuse of trust (the defendant concedes that he intelligently entered the
agreement) or unforeseen circumstances (the parties’ agreement expressly
contemplates the very event at issue: divorce) in this case that would cause
us to hold that the agreement is unenforceable, we recognize that these
circumstances could arise in other cases.
7
The storage agreement provided, just above the parties’ selection for
disposition upon divorce: ‘‘We (I) understand, agree and consent that if we
divorce . . . .’’ (Emphasis omitted.) The plaintiff also testified that she and
the defendant had expressly discussed the issue of disposition upon divorce:
‘‘When we talked about it, we said, in the event that one of us divorce[s]
or we died or anything like that, that we would. And we talked about that.
That’s when we both signed the contract on the day we went to speak to
the center.
***
So, then we spoke about them, and then we agreed that should—in case
of divorce, you know, whichever party initiated it, that we would do this.
So, also the understanding that we agreed upon, that’s what we did. . . .
We both spoke about—we both talked about it, and then we both signed
off on it.’’ The defendant did not expressly confirm that they had discussed
disposition upon divorce but conceded that he had agreed to the disposition
in the storage agreement because ‘‘at the time, I never thought we’d get
divorced, number one; and number two, that’s what my wife wanted, and
I agreed, because I was trying to do as she wanted.’’ His change of heart only
occurred at some point after he had entered the agreement: ‘‘In hindsight,
I realize it was the wrong thing to do, and I’ve changed my mind . . . .’’
8
In concluding that we lack an adequate record for review, we are aware
of the abundance of information outside the record regarding the science
behind in vitro fertilization and on every other aspect of the complex and
difficult issues raised in cases in which it is implicated. We also recognize
that courts occasionally and to varying degrees have taken judicial notice
of this evidence. E.g., McQueen v. Gadberry, supra, 507 S.W.3d 134 n.4
(considering basic scientific evidence related to pre-embryos, even though
‘‘there was no evidence introduced at trial with respect to the science of
[in vitro fertilization], related scientific terms, or the division or cell stages
of the frozen pre-embryos at issue’’). In this light, the defendant notes that
‘‘[s]ome argue [that] the question of when human life beings has been
definitely answered by scientific knowledge,’’ and his counsel at oral argu-
ment before this court suggested that we consider the medical literature
referenced by the amicus as evidence of this point. See, e.g., R. Gitchell,
‘‘Should Legal Precedent Based on Old, Flawed, Scientific Analysis Regard-
ing When Life Begins, Continue To Apply to Parental Disputes over the Fate
of Frozen Embryos, When There Are Now Scientifically Known and Observed
Facts Proving Life Begins at Fertilization?’’ 20 DePaul J. Health Care L. 1,
2 (2018) (‘‘[o]bservable facts of human development can be seen in films
of one cell human embryos that were cryopreserved’’). But see, e.g., P.
Peters, ‘‘The Ambiguous Meaning of Human Conception,’’ 40 U.C. Davis L.
Rev. 199, 201 (2006) (‘‘[m]ost of the governmental commissions that have
studied the propriety of scientific research using early embryos have con-
cluded that embryos less than two weeks old are not moral persons’’).
We note, however, the fundamental difference between establishing the
facts of fertilization and establishing that human life begins at fertilization.
We cannot seriously consider the latter issue on a record devoid of any
evidence whatsoever and with an argument aimed only at one facet of this
‘‘difficult question . . . .’’ Roe v. Wade, 410 U.S. 113, 159, 93 S. Ct. 705, 35
L. Ed. 2d 147 (1973); see id. (‘‘We need not resolve the difficult question of
when life begins. When those trained in the respective disciplines of medi-
cine, philosophy, and theology are unable to arrive at any consensus, the
judiciary, at this point in the development of man’s knowledge, is not in a
position to speculate as to the answer.’’).