The Montana Supreme Court has sent a divorce case back down to the District Court level for more clarification in what could be a precedent-setting decision on the state’s definition of when life begins.
At issue are fertilized frozen embryos the couple made while married. After the divorce, the ex-husband wants them donated to science.
The ex-wife, however, still wants to use them to have a child.
To start out, this embryo issue is part of a larger divorce settlement between two Great Falls-area residents, David Johnson and Mary Black. It’s a pretty complicated divorce involving undisclosed property and assets. The Supreme Court agreed with the ruling of District Judge Katherine Irigoin on those things.
But the court specifically pulled out the ruling on the couple’s nine frozen embryos and is sending that back. District Judge Irigoin ruled in favor of David Johnson, saying the embryos should be donated to science. In the Justice’s Memorandum opinion they say Judge Irigoin’s ruling was not explained—saying “The court’s order consisted of a single sentence with no analysis.”
“And the court felt this was a much more complicated area and wants the District Court to explain if she’s going to decide this under contract law, under property law, under family law, what is she going to base her decision on,” said Montana Law Librarian, Judy Meadows.
Now, let’s go back to how this situation starts.
It’s the mid to late-90s and David Johnson and his wife Mary were trying to conceive a child with no success. David has two children from a previous marriage so the couple went to specialists to test Mary’s fertility, and found a problem.
“They ran all the tests why I couldn’t have children and they determined my best course was in-vitro fertilization,” Mary Black said.
At that time there was no fertility clinic in Montana that could perform in-vitro fertilization—so the couple went to a clinic in Indianapolis—Midwest Reproductive Medicine.
Then there was a several-month-long process involving hormone treatment to get the collection of Mary’s eggs. They were then combined with David’s sperm and nine fertilized embryos were created (clinics wantmultiple embryos because they’re not all going to take in the womb.)
Mary wanted to have them implanted right then, but the clinic determined the treatment she had undergone had thrown her hormones out of whack for awhile. So to wait for the right time, the nine embryos were cryogenically frozen at the clinic.
Then, months go by. Then, years go by.
Mary says David kept giving reasons why a particular time wasn’t a good time to have a child. David Johnson declined our calls seeking comment for this story, saying it’s a private matter.
Eventually, the couple divorces in 2003 with the embryos still frozen. Mary has since remarried, but she says this is the only way she can get pregnant. She says the process to extract the eggs is long and expensive and painful—she doesn’t want to go through it again. Perhaps more importantly, those embryos were made when she was in her 20s.
She’s 42 now. Her eggs won’t be as healthy. She feels she’s running out of time—so she wants all nine.
“With nine embryos it doesn’t mean they’re going to put in a couple embryos and it’s gonna produce a child. Not all embryos are going to result in a child because they’ve been frozen and in the process of that maybe not all are going to survive the thaw process,” Black said.
So if she were given the embryos she would immediately try to get pregnant retroactively with her ex-husband’s child.
“This is definitely a case of first impression,” State Law Librarian Judy Meadows said.”It’s the first time it’s been heard in Montana.”
Meadows says the ruling made at the District Court level, to donate the embryos to science, seems to suggest they are property.
It’s not how Mary Black feels.
“I don’t know why you would want to discard something that represents human life,” Black said.
Judy Meadows says that’s why this divorce case could have big implications. Should frozen, fertilized, embryos constitute life?
“We’re not giving away the Chevy,” Meadows said. “These are potential human beings and there has to be very careful consideration of what would happen to them.”
Meadows says whatever decision District Court makes will almost surely be appealed back to the Montana Supreme Court.