Kim, Nancy S.

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California Western School of Law

California Western School of Law CWSL Scholarly Commons Faculty Scholarship 2018 In Re Marriage of Witten: Subordinating Contract to "Public Policy" Nancy S. Kim Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs  Part of the Contracts Commons FLORIDA STATE UNIVERSITY LAW REVIEWIn Re Marriage of Witten: Subordinating Contract to "Public Policy"NANCY S. Km*In re Marriage of Witten' is a case about a divorcing couple fightingover the fate of frozen embryos.' It is a sad case-divorce cases usuallyare. It is also a good example of a bad contracts case.Tamera and Trip Witten were a married couple who hoped to starta family. Eventually, they turned to in vitro fertilization (IVF). Afterseven-and-a-half years of marriage and several unsuccessful IVF at-tempts, Trip filed for divorce. At issue was whether Tamera Wittencould use one of the seventeen frozen embryos which were in storageat the University of Nebraska Medical Center (UNMC). Tamera tes-tified that if she were able to have a child using one of the embryos,she would give Trip the option of exercising or terminating his paren-tal rights.3 In other words, she was not asking him to be a co-parentor to be involved in supporting or raising the child; she was merelyopposed to destroying or donating the embryos. Trip, however, didnot oppose donating the embryos to another couple-he just did notwant Tamera to use them.4Before starting the IVF process, the Wittens had signed docu-ments prepared by the UNMC, including the "Embryo StorageAgreement," which contained a provision that the embryos would bereleased "only with the signed approval of both Client Depositors."5UNMC's obligation to store the embryos would terminate if the par-ties died, if they authorized the destruction of the embryos, if theyfailed to pay the annual storage fee, or if ten years passed after thedate of the agreement.6On appeal, Tamera argued that the storage agreement was silentwith respect to what would happen to the embryos in the event thatthe parties divorced. In other words, she was making an "omittedterms" argument. But rather than arguing for an interpretationbased upon the intent of the parties, she argued that an Iowa statuteshould apply to award her "custody" of the embryos. That Iowa stat-* ProFlowers Distinguished Professor of Internet Studies and Professor of Law,California Western School of Law; Visiting Professor, Rady School of Management, Univer-sity of California, San Diego.1. 672 N.W.2d 768 (Iowa 2003).2. As the court noted, the "embryo[s]" were likely "pre-zygotes" or "preembryos." Id.at 772 n.I. However, the court used the term "embryo" because that was the term used inthe Witten's contract with UNMC. Id. Because the court adopted the term "embryo," I do sofor the purposes of this essay.3. Id. at 772.4. Id. at 772-73.5. Id. at 772.6. Id.994 [Vol. 45:887THE BEST AND WORST OF CONTRACTSute set forth various standards which courts should use to determinethe custody of children in divorce proceedings.7As the court noted, Tamera was essentially arguing that "the em-bryos are children and their best interest demands placement withher." Trip, on the other hand, argued that "the frozen embryos arenot children and should not be considered as such" under Iowa law.9Tamera's argument thus boxed the court into a politically uncomfort-able corner. In order for the court to rule in her favor, the courtwould have had to find, at least by implication, that embryos wereequivalent to children. Because Tamera's argument was based onpolicy rather than contract, the court was forced to base its interpre-tation on legislative intent rather than on the reasonable expecta-tions of the parties.The court considered the legislative purpose underlying the rele-vant statute and concluded that "the legislature did not intend to in-clude fertilized eggs or frozen embryos within the scope" of the rele-vant law.'o Tamera also made the argument that the contract violatedpublic policy because it allowed a participant in an IVF program to re-nege on an agreement o become a parent." But rather than argue onthe basis of detrimental reliance, Tamera again strayed into volatileterritory by trying to convince the court that it was against public poli-cy to enforce an agreement which allowed "a donor to abandon [IVF]attempts when viable embryos remain."2 The court pushed backagainst this argument, again making a distinction between "childrenwho have been born" and "fertilized eggs that have not even resultedin a pregnancy."3 The court's decision on these two points is wise inlight of how Tamera framed the issue. The court simply could not sidewith her without also equating embryos with children-somethingwhich would likely have unfortunate implications given the politicalheat which surrounds the right to abortion. The court noted that thepower to invalidate a contract on public policy grounds must be exer-cised "cautiously and only in cases free from doubt."' 4But then the court turned its back on contract law in favor of pub-lic policy in the area of reproduction: "We think, however, that itwould be against the public policy of this state to enforce a prioragreement between the parties in this highly personal area of repro-7. Id. at 774-74.8. Id. at 774.9. Id.10. Id. at 776.11. Id. at 780.12. Id.13. Id.14. Id.2018] 995FLORIDA STATE UNIVERSITY LAW REVIEWductive choice when one of the parties has changed his or her mindconcerning the disposition or use of the embryos."1 5The court noted that family and reproductive decisions are "emo-tional in nature and subject to a later change of heart"6 and thus con-cluded that judicial enforcement of contracts between couples on "fu-ture family and reproductive choices would be against . . . public poli-cy."' 7 It then noted that agreements between donors and fertility clin-ics, however, were enforceable.'8 The court jettisoned the ability of cou-ples to enter into contracts involving matters of family planning in fa-vor of a "contemporaneous mutual consent" model which allows eitherparty to change his or her mind. This no-contract approach ignores oneof the primary purposes of contracts-to assist in planning for the fu-ture and to encourage acts of reliance that are a necessary part of sucha planning process. Furthermore, the contemporaneous mutual con-sent model completely ignores the inherently unequal nature of theIVF process. It is the woman who bears the painful, physical burdenswhich the process involves. Thus, it is the woman who will undertakeacts of detrimental reliance upon a promise to participate in the IVFprocess. The woman is also the one who feels more keenly the effects oftime on fertility. Often, as it was in the case of Tamera and Trip, it isalso the woman who would be financially unable to undergo anotherround of IVF procedures after a divorce." The contemporaneous mutu-al consent model presumes an equality which just does not exist whenit comes to the IVF process.The court held that "there can be no use or disposition of the Wit-tens' embryos unless Trip and Tamera reach an agreement."2 0 It thenadded, either cluelessly or mean-spiritedly, that the party who op-poses destruction of the embryos is responsible for storage fees.2' Thecourt's decision thus put Tamera in the humiliating position of tryingto wheedle consent from Trip while continuing to make payments tokeep the eggs in storage.On the first day of class, I tell my contracts students about thebargain principle. I tell them that, with a few caveats, courts will notreview the adequacy of consideration or the fairness of contractual15. Id. at 781.16. Id. at 782.17. Id.18. Id.19. Trip's income was "substantially larger" than Tamera's. Id. at 784. According todocuments submitted to the court, Tamera earned $3,087, $3069, $0 and $15,623.27 duringthe years 1999, 2000, and 2001, respectively. See Respondent-Appellant's/Cross-Appellee'sReply Brief at 2, In re Witten, 672 N.W. 2d 768 (2003) (No. 03-0551), 2003 WL 24314608.20. Witten, 672 N.W. 2d at 783.21. Id. at 784-85. The court also overturned the trial court's order that Trip pay Tam-era cash for her share of his retirement account. Id. at 785.996 [Vol. 45:887THE BEST AND WORST OF CONTRACTSterms. Contract law is about autonomy, individualism, and freedom.Contract law is tough, I say; it expects you to say what you mean andmean what you say.But students soon learn that the law is full of qualifiers and ex-ceptions. Contract law, it turns out, is not so tough after all. Themost obvious examples of contract law's compassionate side are un-conscionability, duress, and the changed circumstances doctrines.But flexibility is an integral part of every aspect of contract law. Con-sideration, mistakes, good faith and fair dealing, interpretationstandards-every contract doctrine has nestled within it some expec-tation of fairness-some ceding to context and social norms of decen-cy. To calm the skittish who fear the slippery slope, "fairness" and"justice" often masquerade as "reasonableness" and "good faith."Nevertheless, wise judges understand that there are some bargainswhich should not be upheld, and conversely, that there are somepromises which must be kept. The equitable doctrines also play theirpart. Promissory estoppel, quasi contract, restitution, moral obliga-tion-these contractual kin accomplish their goals to the extent nec-essary to avoid injustice.22In re Witten relegates contracts to second-class status. Much of theblame lies with Tamera's legal counsel. Tamera's arguments about"custody" of fertilized eggs and a "fundamental right" to pregnancyring alarm bells for anyone concerned about abortion rights and re-productive freedom. It is not difficult to imagine that the court madeits ruling with a worried eye to those who might use the case for po-litical ends. But by expressly dismissing the power of contracts in therealm of intimate relations and ignoring the flexibility of contractdoctrines to fulfill reasonable expectations and prevent injustice, theWitten court went too far and diminished reproductive freedom. Cou-ples make promises to each other all the time. Sometimes, thosepromises result in acts of heartbreaking reliance. Contract law andits equitable kin allow judicial enforcement of promises in such cases.In re Witten should have been one of those cases.22. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS §86 (AM. LAW INST. 1981) (stat-ing that a promise made in recognition of a benefit conferred bindes the promisee "to theextent necessary to prevent injustice"); Id. §89 (modification without consideration binding"to the extent that justice requires enforcement"); Id. §90 (promise which induces reasona-ble detrimental reliance is binding "if injustice can be avoided only by enforcement of thepromise").2018] 997

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