In Re The Marriage Of Witten

672 N.W.2d 768 (2003)


H and W were married for seven and one-half years. On divorce, one of the contested issues at trial was control of the parties' frozen embryos. W underwent several unsuccessful embryo transfers in an attempt to become pregnant. Seventeen fertilized eggs remained in storage at the Medical Center. Prior to in vitro fertilization, the parties signed informed consent documents prepared by the medical center. This included an “Embryo Storage Agreement,” where they agreed that the transfer, release or disposition only with the signed approval of both of the parties. The one exception to joint-approval was upon the death of one or both of the client depositors. The responsibility to store the embryos ceased on the client depositors' written authorization to release the embryos or to destroy them, the death of the client depositors, the failure of the client depositors to pay the annual storage fee, or the expiration of ten years from the date of the agreement. W asked for “custody” of the embryos. W wanted to implant them in herself or a surrogate mother in an effort to bear a genetically linked child. W offered H the opportunity to exercise parental rights or to have his rights terminated. H did not want W to use them. H would not oppose donating the embryos for use by another couple. The district court decided the dispute should be governed by the “embryo storage agreement” which required both parties' consent to any use or disposition of the embryos. The trial court enjoined both parties “from transferring, releasing or in any other way using or disposing of the embryos without the written and signed approval and authorization” of the other party. W appealed. W claims the storage agreement is silent with respect to disposition or use of the embryos upon the parties' dissolution and the court should have applied the “best interests” test of Iowa Code chapter 598 (2001) and, pursuant to that analysis, awarded custody of the embryos to her. W also claims she is entitled to the fertilized eggs due to her fundamental right to bear children. W also claims it would violate the public policy of this state if H were allowed to back out of his agreement to have children.