In a unanimous decision, the Connecticut Supreme Court reversed the Trial Court and held in Bilbao v. Goodwin that a storage agreement was valid and enforceable whereby the parties checked a box to discard pre-embryos in the event of their divorce. Many fertility facilities use check box or other types of storage agreements; however, there has always been some question as to how a court would enforce such agreements. In this case, the Supreme Court answered that question in a limited context.

By way of background, a married couple entered into a storage agreement for pre-embryos.  The storage agreement required the parties to check a box regarding the disposition of the pre-embryos in the event of a divorce.  The couple in this case decided that in the event they divorced, the reproductive services center should destroy their pre-embryos.  At trial, the plaintiff requested that the pre-embryos be disposed of, as the parties set forth in the storage agreement.  In contrast, the defendant asserted he had changed his mind and wanted the pre-embryos preserved in the event the parties reconciled, or, alternatively, have the pre-embryos donated.  The defendant’s theory on appeal was that a pre-embryo is a human life and property of the marital estate subject to distribution, and, in the absence of an enforceable contractual agreement the Trial Court should have used a legal presumption in favor of the defendant, who sought to preserve such human life.

The Trial Court held that the storage agreement was unenforceable due to a lack of consideration, and awarded the pre-embryos to the plaintiff, concluding that the plaintiff’s interests outweighed that of the defendant.  The Supreme Court reversed the Trial Court after analyzing three different tests employed by other states: (1) the contractual approach; (2) the balancing approach and (3) the contemporaneous mutual consent approach.  In its decision, the Supreme Court found that of the states that have decided this issue, the majority of them took the contractual approach.  Accordingly, the Supreme Court chose the contractual approach, stating, “progenitors should be the primary decision makers regarding disposition of their pre-embryos,” that there are benefits to making a decision in advance, and that choosing this approach was consistent with public policy and industry recommendations for advanced directives of pre-embryos.

Under the contractual approach, the Supreme Court held that “an agreement between progenitors governing disposition of pre-embryos is presumed valid and enforceable in a dispute between them.”  The Supreme Court had no issue with the check box and initial nature of the agreement, analogizing that the Connecticut state court system uses check boxes for court orders.  Contrary to the Trial Court’s holding, the Supreme Court found that the storage agreement was an offer and acceptance of definite terms and was supported by valuable consideration.  Specifically, the Supreme Court stated how “each party offered one another the opportunity to create pre-embryos by contributing gametic material under the terms spelled out in the agreement,” including the terms of discarding the pre-embryos in the event of divorce.  Each party accepted these terms by checking the appropriate box, initialing, and signing the agreement. Further, the reproductive services center promised to store the pre-embryos in exchange for the certainty provided by the parties in determining the disposition of the pre-embryos in the event of divorce. Accordingly, the Supreme Court found that there was adequate consideration and an enforceable agreement.

As stated above, while this case brought clarity as to whether a storage agreement is enforceable, it did so in a limited context.  Specifically, the Supreme Court’s holding only applies to storage agreements that would not result in the procreation of a child, if enforced.  This means that the Supreme Court has reserved the option to use a different approach if a storage agreement provided for the possibility of procreation of a child, and one party no longer wanted that outcome.  Lastly, because the Supreme Court found an enforceable agreement, the Court did not decide the result of this type of scenario if there was no enforceable agreement or no agreement at all.

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Photo of Daniel J. Kagan Daniel J. Kagan

Dan Kagan is an Associate in the Health Care, Long Term Care and Privacy and Cybersecurity Groups. He represents hospitals, physicians, nursing homes, assisted living communities, CCRCs and other health care clients with a wide range of regulatory, compliance, risk management, transactional and reimbursement issues.

With regard to Privacy and Cybersecurity, Dan has experience drafting privacy policies and notices, website terms of use, written information security plans and incident response plans.  Dan counsels clients on compliance issues related to state, federal and international privacy laws including the General Data Protection Regulation (GDPR).  Dan also has experience representing both health care and non-health care clients that have suffered data breaches and assists such clients with breach response and applicable reporting obligations.  Dan writes extensively on privacy and cybersecurity issues and is a co-editor of Murtha’s Privacy and Cybersecurity Perspectives blog.

As a member of the Health Care and Long Term Care groups, Dan has experience representing clients with HIPAA compliance, Stark and anti-kickback analyses, purchase and sale transactions, reviewing and drafting contracts, certificate of need requirements, rate appeals, Medicare and Medicaid audits, medical staff and credentialing matters, licensing and change of ownership proceedings.

Prior to joining Murtha Cullina, Dan clerked for the Honorable Lubbie Harper, Jr. and the Honorable Joseph H. Pellegrino of the Connecticut Appellate Court.

Dan received his J.D. with honors from the University of Connecticut School of Law where he was a Notes and Comments Editor for the Connecticut Insurance Law Journal. He earned his Bachelor of Arts in Economics from McGill University.