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  • Writer's pictureScott Semrau

In Divorce Who Gets The Embryo?

Updated: Jul 20, 2018

Un-published, Un-propagated and Un-punished, the Curious Case of the Guardado Embryo in which the Court of Appeals Does Not Go Big.

Note: July 2018 - here's an update for this post. New Arizona law awards embryo's to spouse willing to bring to birth:

In the matter of the marriage of Aimee Guardado and Otto Guardado, Court of Appeals Div. II, No. 49345, decided February 6, 2018

Becoming Mr. and Ms. Guardado, Otto and Aimee married in December of 2011 and the next month headed straight for the in vitro fertilization clinic. A couple of months, a few signatures and about $10,000 later they found themselves the holders of three viable embryos. Two of the embryos were implanted into Ms. Guardado and the third was frozen for later. Having previously undergone a vasectomy, Mr. Guardardo’s future reproductive ambitions, at least metaphorically, were now in the bank. Nine months later Ms. Guardado gave birth to a healthy child. But, alas, after just another year they declared their marriage irretrievably broken and filed for divorce.

Child custody immediately became a contested issue. The dispute regarding their actual child was familiar: each parent wanted more time and control than the other wanted to give. But as to the embryo, Mr. Guardado proposed implanting it into a surrogate and bringing it to term, whereas Ms. Guardado did not want it brought to term at all – not by science, not by her, not by anyone.

What to do, what to do? Traditionally, courts have applied the “best interest of the child” standard to resolve custody disputes. And so it was in this case that the Guardado’s agreed to submit to interviews and supply their physical and mental health records to an expert third party investigator who would then make recommendations to the court as to the best interest of their child. But resolution of the other custody fight was less clear. Scientific advancements in reproductive technology have outpaced the law. Aside from the present case Washington Appellate courts have considered just one other in vitro fertilization case, Litowitz v. Litowitz, 146 Wash2d 514 (2002), but it was resolved solely by looking to the contractual business agreements that the parties had signed at the fertility clinic. Resolving the Guardado case would be more difficult because while they did sign an agreement before doing their business, their agreement provided specifically that the Court would resolve any dispute over control of the embryo.

At trial, Mr. Guardado seems to have focused his arguments on his parental fitness and his embryo’s best interest. As it turns out, Mr. Guardado learned that despite the Court’s Order, Ms. Guardado had failed to disclose that she was seeing a mental health counselor. Parental fitness, Mr. Guardado argued, was important. He had had a vasectomy. He was the most fit “parent” to decide how to care for his embryo-offspring. He subpoenaed his wife’s mental health records and just four days before trial, the records were delivered to the Trial Court’s chambers. For reasons unclear in the opinion, the Trial Court did not review the records but instead held them until the second day of trial and then distributed them to the parties. On appeal, Mr. Guardado argued that the discovery abuse caused him to have an unfair trial. However, back when it really mattered, in the middle of trial, when the records showed up on the second day, Mr. Guardado did not ask for a continuance or a mistrial, but instead moved to have the records excluded from the record. The Trial Court granted his request to exclude the records and the trial was concluded.

So, what did the Trial Court do? Who got the embryo? Well, actually, nobody. The embryo would remain un-propagated, frozen. The Trial Court awarded joint ownership of the embryo, neither party could take independent action with the embryo and it would be preserved at Mr. Guardado’s expense. However , the Court continued, if (in some cataclysmic other universe of congeniality) the parties could agree on a use for the embryo, well then that would be fine. FYI, frozen embryos pretty much last indefinitely; last year a Tennessee woman gave birth to a healthy child after being implanted with a 24-year-old embryo.

Trial and Appellate Courts in other states have not been so willing to pass the buck but have awarded sole ownership of the embryo after applying a balancing test that includes the parties’ preferred disposition, whether one or both parties were progenitors of the embryo, the inability of a party to procreate, the right to procreate, the right to not procreate, and any legally established interests of the embryo. The right to not procreate appears to be the strongest factor. To be fair, in the instant case, both the Trial court and the Court of Appeals balanced the above concerns before deciding to leave the parties and the embryo in the exact same position they were in before trial.

As to Ms. Guardado’s discovery violation, it would go unpunished, largely it seems because Mr. Guardado got exactly what he asked for at trial, which was to exclude the un-produced records.

Finally, the Court of Appeals ruled that their decision would go unpublished even though the issues clearly involved new and unsettled questions of law and, at least to this writer, are clearly of interest to the public (See Rules of Appellate Procedure 12.3). Appellate Attorney Valerie Villacin was interviewed for this article. She is a partner with Smith Goodfriend, a firm focusing on civil appeals, and she pointed out that pursuant to General Rule 14.1 an unpublished opinion may still be cited for its persuasive value. Furthermore, Ms. Villacin said that anyone truly upset by a decision not to publish may file a Motion to Publish. However, unlike the Guardado’s eternally preserved embryonic legal rights, a Motion to Publish must be made within 20 days.

Scott Semrau is the Managing Partner of Divorce Litigation Partners, a Seattle Domestic Relations Law Firm.



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