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*********************************************** 
JESSICA BILBAO v. TIMOTHY R. GOODWIN

(SC 20078)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The defendant appealed from the judgment of the trial court dissolving his

marriage to the plaintiff and awarding her certain pre-embryos that the

parties had cryopreserved after having created them through in vitro

fertilization during their marriage. The parties had entered into a storage

agreement with the reproductive services center responsible for cryopreserving the pre-embryos. The storage agreement contained checkbox

options that provided for disposition of the pre-embryos under certain

circumstances. The parties checked the box indicating that they agreed

to have the pre-embryos discarded in the event that they divorced,

initialed their selection, and signed the agreement. The plaintiff asked

the trial court to order that the pre-embryos be discarded in accordance

with the storage agreement, whereas the defendant claimed that he had

changed his mind, was no longer bound by that provision of the storage

agreement, and wanted the pre-embryos preserved so that the parties

could have children in the event that they reconciled or, in the alternative,

wanted the pre-embryos to be donated. The trial court determined that

the storage agreement was not enforceable because it lacked consideration. The court then awarded the pre-embryos to the plaintiff, concluding that the plaintiff’s interest in them outweighed the defendant’s interest. On appeal, the defendant claimed that the trial court incorrectly

determined that a pre-embryo is property subject to distribution under

the statute (§ 46b-81) governing distribution of the marital estate upon

divorce and also claimed that, even if it is property, in the absence of

an enforceable contractual agreement, the court failed to employ a legal

presumption in his favor as the party seeking to preserve the pre-embryos

because they are human beings. Held:

1. This court concluded that the contractual approach to determining the

disposition of a pre-embryo upon divorce, pursuant to which an agreement between progenitors governing the disposition of a pre-embryo

is presumed valid and enforceable in a dispute between them, is the

appropriate first step in such a determination, reasoning that progenitors

should be the primary decision makers regarding the disposition of their

pre-embryos, there are significant benefits to making such a decision

in advance rather than at the moment of disposition, such an approach

is consistent with Connecticut’s public policy and the current practices

of most state courts that have confronted the issue, and various professional associations focusing on the field of reproductive medicine recommend advance directives regarding the disposition of pre-embryos in

the event of divorce; moreover, this court clarified that such an approach

applies in cases in which an agreement, if enforced, will not result in

procreation and declined to decide whether such an approach would

apply to a scenario in which one party would be compelled to become

a genetic parent against his or her wishes or what approach a court

should take in the absence of an enforceable agreement.

2. The trial court incorrectly determined that the parties had not entered

into an enforceable agreement to discard the pre-embryos upon divorce,

and, accordingly, this court reversed the trial court’s judgment insofar

as that court determined that their agreement was not enforceable,

vacated the trial court’s order awarding the pre-embryos to the plaintiff,

and remanded the case with direction to order the disposition of the

pre-embryos in accordance with the agreement: there was an offer and

an acceptance of definite terms, as each party offered the other the

opportunity to create pre-embryos by contributing gametic material

under the terms of the agreement, and each party accepted the other’s

offer by signing the agreement and contributing gametic material; moreover, the trial court’s determination that the storage agreement lacked

consideration was clearly erroneous, as the plaintiff and the defendant

made mutual promises to contribute gametic material, and the reproduc-
tive services center promised to store the pre-embryos in exchange for

the certainty provided by the parties’ election of a disposition in the

event of the parties’ divorce; furthermore, the trial court’s focus on the

checkbox nature of the storage agreement to conclude that the agreement was unenforceable was misplaced, as agreements in which parties

use checkboxes to indicate their rights and responsibilities are not

insufficient for that reason alone, checkboxes, sometimes accompanied

by the parties’ initials, are routinely used in important and binding legal

documents, and any suggestion that the checkboxes were evidence that

the parties had not seriously considered the matter of disposition was

contradicted by the storage agreement and the parties’ testimony.

3. This court having determined that there was an enforceable agreement,

the defendant could not prevail on his claims that, in the absence of a

contractual agreement, a pre-embryo is not property within the meaning

of § 46b-81 because it is a human life or, if it is deemed property, that

the trial court should have applied a presumption in favor of preserving

the pre-embryos, as those claims incorrectly presupposed that there

was no enforceable contract between the parties; moreover, to the extent

that the defendant claimed that an agreement that provides for the

disposition of a pre-embryo is unenforceable on the ground that a preembryo is a human life, this court declined to review that claim for lack

of an adequate record, as the defendant did not raise such a claim at

trial and did not even appear to make that argument on appeal.

Argued April 30—officially released November 5, 2019

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Nastri, J.; judgment dissolving the marriage and granting certain other

relief, from which the defendant appealed. Reversed in

part; vacated in part; order directed.

Joseph P. Secola, with whom, on the brief, was Timothy R. Goodwin, self-represented, for the appellant

(defendant).

Scott T. Garosshen, with whom were Brendon P.

Levesque and, on the brief, Michael S. Taylor, for the

appellee (plaintiff).

Leslie I. Jennings-Lax and Louise T. Truax filed

a brief for the Connecticut Chapter of the American

Academy of Matrimonial Lawyers as amicus curiae.

Rita Louise Lowery Gitchell, pro hac vice, Philip S.

Walker and Joanne F. Davis filed a brief for the American Association of Pro-Life Obstetricians and Gynecologists as amicus curiae.
Opinion

D’AURIA, J. In this appeal, we are called on to determine how pre-embryos created through in vitro fertilization should be distributed upon the divorce of their

progenitors. The plaintiff, Jessica Bilbao, and the defendant, Timothy R. Goodwin, were married and underwent in vitro fertilization in an effort to have children.

Several pre-embryos resulting from that treatment were

stored for implantation in the future.1 As part of a storage agreement with the fertility clinic, the parties

unequivocally stated that they wanted the pre-embryos

discarded if they ever divorced. Their marriage has

since been dissolved, and the plaintiff now seeks to

have the pre-embryos discarded in accordance with

the storage agreement. The defendant argues that the

agreement is unenforceable, however, and wants the

pre-embryos preserved or donated. The trial court concluded that the storage agreement was unenforceable

but awarded the pre-embryos to the plaintiff. We conclude that the storage agreement is enforceable and,

therefore, reverse the trial court’s judgment insofar as

the court determined that the agreement was not

enforceable.

The record reveals the following undisputed facts

as found by the trial court and contained in exhibits

submitted by the parties. The parties were married in

2011. Soon after, they began efforts to have a child

through in vitro fertilization with the assistance of the

University of Connecticut School of Medicine’s Center

for Advanced Reproductive Services (center). The treatment produced several pre-embryos, one of which was

transferred to the plaintiff’s uterus and resulted in the

birth of a child. The center cryopreserved the remaining

pre-embryos.2

Originally, the parties had planned to have another

child using the remaining pre-embryos. But, together,

they also planned for certain contingencies by entering

into a storage agreement with the center: a four page

form entitled ‘‘Consent for Cryopreservation and Storage of Embryos’’ that provided for the disposition of

the pre-embryos upon death or divorce. Specifically,

the agreement offered four checkbox options relative

to divorce: leave the pre-embryos to the female party,

to the male party, to a third-party designee of their

choice, or have them ‘‘discarded according to American

Society for Reproductive Medicine Ethical Guidelines.’’

The parties opted to have the pre-embryos discarded,

which they manifested by checking the appropriate box,

initialing that selection, and signing the agreement in

full on the next page. The parties also acknowledged

in the agreement that they had discussed the agreement

with a physician, and the agreement provided that the

parties could modify their selection through written

consent signed by both of them.
In September, 2016, the plaintiff filed this action for

dissolution of marriage. With the assistance of counsel,

the parties reached a settlement agreement that

resolved all of their disputes except for the allocation

of debt from a home loan and the disposition of the

pre-embryos. The debt allocation is not part of this

appeal. Regarding the pre-embryos, the plaintiff asked

the trial court to order that they be discarded in accordance with the storage agreement. The defendant

wanted the pre-embryos preserved so that the parties

could try to have additional children in the event they

reconciled or, alternatively, wanted the pre-embryos to

be put up for adoption.3

The record also reveals the following procedural history. Although the parties each had counsel in drafting

the settlement agreement, they represented themselves

in this matter before the trial court. To resolve the

disputes regarding the debt allocation and pre-embryos,

the trial court held a brief proceeding at which both

parties testified. The plaintiff submitted the settlement

agreement and storage agreement as exhibits, but neither party filed a substantive motion, submitted a brief,

or argued legal matters to the court.

The trial court issued a memorandum of decision in

which it incorporated the settlement agreement and

resolved the debt dispute. Regarding the pre-embryos,

it determined that the storage agreement was not

enforceable. In the absence of an enforceable agreement, the court proceeded as if the pre-embryos were

‘‘property’’ subject to distribution under General Statutes § 46b-81,4 concluded that the plaintiff’s interest in

the pre-embryos outweighed the defendant’s interest

and, therefore, awarded them to her.

The defendant appealed to the Appellate Court from

the trial court’s judgment awarding the pre-embryos to

the plaintiff. The appeal was then transferred to this

court. See General Statutes § 51-199 (c); Practice Book

§ 65-1.

On appeal, the defendant appears to make two claims

of error, both of which presuppose that the trial court

correctly determined that the parties lacked an enforceable agreement. The defendant agrees with this portion

of the trial court’s analysis but disagrees with the trial

court’s determination that the plaintiff’s interest in the

pre-embryos outweighed his interest. Specifically, both

of the defendant’s claims are rooted in his factual premise that a pre-embryo is a human being. First, he claims

that the trial court incorrectly determined that a preembryo is ‘‘property’’ subject to distribution under

§ 46b-81. Specifically, he argues that a pre-embryo is

human life and, as such, must be awarded to the party

seeking to preserve it. Second, he claims that, even if

a pre-embryo is property under § 46b-81, the trial court

improperly failed to employ a legal presumption in favor
of the party seeking to preserve it because it is a

human being.5

In response, the plaintiff argues that the trial court

was incorrect that the parties had no enforceable agreement and, therefore, urges us to affirm the judgment

on this alternative ground. See Practice Book §§ 63-4

and 84-11. We agree with the plaintiff that the parties’

agreement providing for the disposition of their preembryos upon divorce is enforceable. Our holding necessarily defeats the defendant’s claims, which are premised on the prerequisite determination that the contract

was unenforceable. To the extent that the defendant’s

claims include an argument that a contract requiring

the destruction of pre-embryos is unenforceable as a

matter of public policy because a pre-embryo is a human

being, we find this issue unreviewable because he failed

to present any evidence at trial to support the factual

premise that a pre-embryo is a human being. See footnotes 5 and 8 of this opinion.

As a predicate to the defendant’s claims, we first

must determine whether the parties’ storage agreement,

which unambiguously provided that the pre-embryos

should be discarded in the event of divorce, is enforceable between the plaintiff and the defendant. The trial

court held that it was not enforceable because it lacked

consideration and indicated the parties’ disposition

selection in the form of a checkbox. The defendant

agrees with the trial court’s analysis. The plaintiff

argues that the agreement was supported by consideration and that the checkbox nature of the agreement

did not render it insufficient. We agree with the plaintiff.

The following additional procedural history is relevant. At trial, the enforceability of the storage agreement was central to the dispute, and the parties’ respective positions were clear. The plaintiff submitted the

storage agreement as evidence and stated that she

wanted its terms enforced, as the parties had originally

agreed. The defendant admitted that he originally had

agreed to discard the pre-embryos if the couple ever

divorced but argued that he had since changed his mind

and that this provision of the agreement no longer

bound him.

In its memorandum of decision, the trial court noted

the lack of Connecticut authority on this issue, considered the law in other jurisdictions, and adopted a two

step approach to resolve the dispute. First, it would

decide whether the parties had an enforceable agreement that provided for the disposition of the preembryos. Second, in the absence of an agreement, it

would balance their respective interests in the preembryos. In conducting the first step, the trial court

concluded that the consent form was not an enforceable

agreement because it ‘‘was little more than a ‘check the

box questionnaire,’ which had ‘‘neither consideration

nor a promise.’’ It then proceeded to the second step,
determined that the plaintiff’s interests in the preembryos outweighed the defendant’s interests, and

awarded them to her.

In the sections of this opinion that follow, we describe

the current state of the law on pre-embryo disposition

upon divorce and conclude that the trial court properly

considered whether the parties had an enforceable

agreement, but we also conclude that the trial court

incorrectly determined that the storage agreement was

unenforceable. We also clarify the narrow scope of

our decision.

I

There are three leading approaches to determining

the disposition of a pre-embryo upon divorce: (1) the

contractual approach, (2) the balancing approach, and

(3) the contemporaneous mutual consent approach.

Each approach attempts to resolve disputes between

progenitors by emphasizing different policies: the progenitors’ autonomy in deciding the fate of pre-embryos

created with their own gametic material, the reality that

progenitors may change their minds as time passes,

or both.

Under the contractual approach, an agreement

between progenitors governing disposition of the preembryos is presumed valid and enforceable in a dispute

between them. E.g., In re Marriage of Rooks, 429 P.3d

579, 595 (Colo. 2018), cert. denied sub nom. Rooks v.

Rooks, U.S. , 139 S. Ct. 1447, 203 L. Ed. 2d

681 (2019). These agreements often appear as consent

forms or storage agreements between progenitors and

a fertility clinic. E.g., id., 587.

Proponents of the contractual approach primarily

argue that this approach allows ‘‘the progenitors—not

the [s]tate and not the courts . . . [to] make this deeply

personal life choice.’’ Kass v. Kass, 91 N.Y.2d 554, 566,

696 N.E.2d 174, 673 N.Y.S. 2d 350 (1998). They also note

that, by validating and enforcing a contract based rule,

the approach promotes serious discussion between the

progenitors in advance of divorce, gives progenitors

and storage facilities a measure of certainty to plan

for the future, and helps avoid costly and emotionally

taxing litigation. See, e.g., Terrell v. Torres, 246 Ariz.

312, 318, 438 P.3d 681 (App. 2019), review granted,

Arizona Supreme Court, Docket No. CV-19-0106-PR

(August 27, 2019); Szafranski v. Dunston, 993 N.E.2d

502, 515 (Ill. App.), appeal denied, 996 N.E.2d 24 (Ill.

2013); Kass v. Kass, supra, 565–66.

Critics of this approach focus on the fact that preembryos can be stored indefinitely and that progenitors

might change their minds about disposition as time

passes. E.g., Terrell v. Torres, supra, 246 Ariz. 318 (contractual approach ignores ‘‘numerous uncertainties

inherent in the [in vitro fertilization] process that extend

. . . the viability of [embryos] indefinitely and allow
. . . time for minds, and circumstances, to change’’

[internal quotation marks omitted]); In re Marriage of

Witten, 672 N.W.2d 768, 777 (Iowa 2003) (contractual

approach ‘‘binds individuals to previous obligations,

even if their priorities or values change’’ [internal quotation marks omitted]). For some commentators, the failure to account for changed circumstances can be so

great that dispositional agreements ‘‘smack of unconscionability.’’ E. Waldman, ‘‘Disputing Over Embryos:

Of Contracts and Consents,’’ 32 Ariz. St. L.J. 897, 926

(2000).

Under the balancing approach, a court weighs each

progenitor’s interest in the pre-embryos. Factors to consider include the intended use of the pre-embryos, the

ability of each respective spouse to reproduce through

other means, reasons for pursuing in vitro fertilization,

emotional consequences, and bad faith. See, e.g., In re

Marriage of Rooks, supra, 429 P.3d 588, 592–93.

New Jersey has adopted this approach as the first

and only step in resolving disputes over the disposition

of pre-embryos upon divorce. See J.B. v. M.B., 170 N.J.

9, 29, 783 A.2d 707 (2001). The New Jersey Supreme

Court has emphasized that it permits progenitors to

reconsider their initial stances up to the point of disposition, which is consistent with that state’s public policy

of preserving parental rights ‘‘in all but statutorily

approved circumstances.’’ Id., 27. But most courts use

the balancing approach as a second step, only to be

employed after it is determined that no enforceable

agreement between the progenitors exists and, thus,

that the contractual approach does not resolve the

issue. See, e.g., In re Marriage of Rooks, supra, 429

P.3d 593; Reber v. Reiss, 42 A.3d 1131, 1136 (Pa. Super.),

appeal denied, 619 Pa. 680, 62 A.3d 380 (2012); Davis

v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992), cert. denied

sub nom. Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259,

122 L. Ed. 2d 657 (1993). This is because the balancing

approach ultimately puts the disposition of a preembryo in the hands of a court and not in the hands

of the progenitors.

Under the contemporaneous mutual consent

approach, both progenitors must agree to a disposition

at the time of the disposition. See In re Marriage of

Witten, supra, 672 N.W.2d 783 (‘‘no transfer, release,

disposition, or use of the embryos can occur without

the signed authorization of both donors’’). If the parties

do not agree, the pre-embryos remain in storage indefinitely. See id.

This third approach attempts to accommodate the

competing principles driving both the contractual

approach—progenitors, not courts, should decide the

disposition of their pre-embryos—and the balancing

approach—progenitors should be allowed to change

their minds at any point. Id., 782. Only Iowa has affirmatively adopted this approach, however. See id., 783; see
also McQueen v. Gadberry, 507 S.W.3d 127, 157 (Mo.

App. 2016) (upholding trial court decision that relied

on contemporaneous mutual consent approach when

parties had no enforceable agreement). Other courts

have criticized the contemporaneous mutual consent

approach as ‘‘totally unrealistic’’; Reber v. Reiss, supra,

42 A.3d 1135 n.5; see also id. (‘‘[i]f the parties could

reach an agreement, they would not be in court’’); and

unfair because it ‘‘gives one party a de facto veto over

the other party by avoiding any resolution until the

issue is eventually mooted by the passage of time’’ and

creates ‘‘incentives for one party to leverage his or her

power . . . .’’ In re Marriage of Rooks, supra, 429

P.3d 589.

A majority of states that have addressed the issue

employ the contractual approach as the first step in

resolving a dispute over pre-embryos upon divorce. To

date, courts in eight states have done so. See Terrell v.

Torres, supra, 246 Ariz. 320; In re Marriage of Rooks,

supra, 429 P.3d 592; Szafranski v. Dunston, supra, 993

N.E.2d 514; Kass v. Kass, supra, 91 N.Y.2d 564–66; In

re Marriage of Dahl, 222 Or. App. 572, 583, 194 P.3d

834 (2008), review denied, 346 Or. 65, 204 P.3d 95 (2009);

Davis v. Davis, supra, 842 S.W.2d 597; Roman v.

Roman, 193 S.W.3d 40, 50 (Tex. App. 2006), review

denied, Texas Supreme Court, Docket No. 06-554

(August 24, 1997), cert. denied, 552 U.S. 1258, 128 S.

Ct. 1662, 170 L. Ed. 2d 356 (2008); Litowitz v. Litowitz,

146 Wn. 2d 514, 528, 48 P.3d 261 (2002), cert. denied,

537 U.S. 1191, 123 S. Ct. 1271, 154 L. Ed. 2d 1025 (2003).

Courts in two states have expressly reserved decision

on whether to adopt the contractual approach because

an enforceable contract did not exist in the cases in

which the question arose. See McQueen v. Gadberry,

supra, 507 S.W.3d 156 n.32; id., 157 (upholding trial court

decision relying on contemporaneous mutual consent

approach); Reber v. Reiss, supra, 42 A.3d 1136 (applying

balancing approach). One state court has expressly

declined to enforce a contract that was to result in the

implantation of pre-embryos but reserved decision on

whether it would enforce a contract that would result

in the discarding of pre-embryos. See A.Z. v. B.Z., 431

Mass. 150, 159, 160 n.22, 725 N.E.2d 1051 (2000) (upholding trial court’s decision relying on balancing

approach). And, as we discussed previously, two state

courts have expressly rejected the contractual

approach in favor of either the balancing approach; see

J.B. v. M.B., supra, 170 N.J. 29–30; or the contemporaneous mutual consent approach. See In re Marriage of

Witten, supra, 672 N.W.2d 783.

II

The standard of review applicable to the enforceability of dispositional agreements presents a question of

law; therefore, our review is plenary. See, e.g., Bedrick

v. Bedrick, 300 Conn. 691, 697, 17 A.3d 17 (2011). We
conclude that the contractual approach is the appropriate first step in determining the disposition of preembryos upon divorce for several reasons.

First, we agree with courts adopting the contractual

approach that, when possible, progenitors should be

the primary decision makers regarding disposition of

their pre-embryos. This ‘‘maximize[s] procreative liberty by reserving to the progenitors the authority to

make what is in the first instance a quintessentially

personal, private decision.’’ Kass v. Kass, supra, 91

N.Y.2d 565. It ‘‘is in keeping with the proposition that

the progenitors, having provided the gametic material

giving rise to the [pre-embryos], retain decision-making

authority as to their disposition.’’ Davis v. Davis, supra,

842 S.W.2d 597.

Second, there are significant benefits to making this

decision in advance, rather than at the moment of disposition. Preexisting agreements ‘‘promote serious discussions between the parties prior to participating in in

vitro fertilization’’; Szafranski v. Dunston, supra, 993

N.E.2d 515; and manifest choices ‘‘made before disputes

erupt . . . .’’ Kass v. Kass, supra, 91 N.Y.2d 566. This

‘‘minimize[s] misunderstandings’’ that might arise in the

future, provides certainty for progenitors and fertility

clinics, and decreases the likelihood of litigation. Id.,

565; see also Szafranski v. Dunston, supra, 515.

Of course, as in the present case, progenitors might

change their preferences for disposition as time passes.

Although the contractual approach prioritizes progenitor autonomy and certainty over an absolute ability to

change one’s mind, as offered by the balancing and

contemporaneous mutual consent approaches, advance

directives that permit joint, written modifications

address this concern by offering a measure of flexibility.

See, e.g., Terrell v. Torres, supra, 246 Ariz. 319 (‘‘[c]ourts

have addressed these concerns by permitting parties

to subsequently jointly modify their initial agreement’’);

Kass v. Kass, supra, 91 N.Y.2d 566 (‘‘advance directives,

subject to mutual change of mind that must be jointly

expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors

the authority to make what is in the first instance a

quintessentially personal, private decision’’); Davis v.

Davis, supra, 842 S.W.2d 597 (‘‘[p]roviding that the initial agreements may later be modified by agreement

will, we think, protect the parties against some of the

risks they face in this regard’’); Roman v. Roman, supra,

193 S.W.3d 50 (allowing parties voluntarily to decide

disposition of frozen embryos in advance of cryopreservation, subject to mutual change of mind, jointly

expressed, best serves public policy and parties’ interests). This seems particularly reasonable in light of the

asymmetrical consequences, under the contemporaneous mutual consent approach, of changing one’s mind.

To the extent one party benefits from the option to
change his or her dispositional preference, the other

party is deprived of the agreement he or she originally

bargained for and relied on in agreeing to create the

pre-embryos.

Third, the contractual approach is consistent with

Connecticut’s public policy. By statute, a fertility clinic

must provide a progenitor with ‘‘timely, relevant and

appropriate information sufficient to allow that person

to make an informed and voluntary choice regarding

the disposition of any embryos,’’ including ‘‘the option

of storing, donating to another person, donating for

research purposes, or otherwise disposing of any

unused embryos . . . .’’ General Statutes § 32-41jj (c)

(1) and (2). Moreover, the contractual approach is consistent with the state’s well settled policy of enforcing

intimate partner agreements; see, e.g., General Statutes

§ 46b-66 (settlement agreement); General Statutes

§ 46b-36g (premarital agreement); Bedrick v. Bedrick,

supra, 300 Conn. 698–99 (postnuptial agreement);

Boland v. Catalano, 202 Conn. 333, 342, 521 A.2d 142

(1987) (agreement between unmarried cohabitants);

and gestational agreements. See, e.g., General Statutes

§ 7-48a (permitting intended parents in gestational

agreement to obtain birth certificate). In many cases,

these agreements ‘‘encourage the private resolution of

family issues. In particular, they may allow couples to

eliminate a source of emotional turmoil . . . .’’ Bedrick

v. Bedrick, supra, 698.

Fourth, the contractual approach accords with the

current practices of most state courts that have confronted the issue. As discussed previously, a substantial

majority of state courts that have addressed the preembryo disposition issue have applied the contractual

approach when an enforceable contract exists. See part

I of this opinion. The contractual approach furthers this

policy of informed consent regarding the disposition of

pre-embryos. Moreover, at least one state legislature

requires progenitors to enter into disposition agreements; Fla. Stat. Ann. § 742.17 (West 2016); and, as

in Connecticut, at least three other state legislatures

require that fertility clinics provide progenitors with

options for disposition in the event of various contingencies. See Cal. Health & Safety Code § 125315 (Deering 2012); Mass. Gen. Laws Ann. c. 111L, § 4 (LexisNexis

2018); N.J. Stat. Ann. § 26:2Z-2 (West 2018). But see,

e.g., Ariz. Rev. Stat. Ann. § 25-318.03 (A) (1) (2018) (in

divorce proceeding, awarding pre-embryo ‘‘to spouse

who intends to allow the in vitro human pre-embryos

to develop to birth,’’ regardless of disposition agreement); La. Stat. Ann. § 9:129 (Supp. 2018) (‘‘[a] viable

in vitro fertilized human ovum is a juridical person

which shall not be intentionally destroyed’’).

Finally, various professional associations focusing

on the field of reproductive medicine recommend that

progenitors provide advance directives regarding dis-
position of their pre-embryos in various scenarios,

including divorce. E.g., Ethics Committee of the American Society for Reproductive Medicine, ‘‘Disposition

of Abandoned Embryos: A Committee Opinion,’’ 99

Fertility & Sterility 1848, 1848 (2013), available at

https://www.asrm.org/globalassets/asrm/asrm-content/

news-and-publications/ethics-committee-opinions/

disposition_of_abandoned_embryos-pdfmembers.pdf

(last visited October 29, 2019); see also American Medical Association, Code of Medical Ethics (2017) Opinion

4.2.5, pp. 70–71. Advance directives provide practical

certainty for storage facilities, reduce the likelihood of

abandonment, and ensure that facilities will be able to

satisfy their ethical obligations.

Therefore, we conclude that, in the absence of formal

legislative guidance on the question, the contractual

approach is the appropriate first step in determining

the disposition of pre-embryos upon divorce. As set

forth in part IV of this opinion, we do not decide how

a court should determine the disposition of pre-embryos

in the absence of an enforceable agreement.

III

Finally, we conclude that the trial court incorrectly

determined that the parties had not entered into an

enforceable agreement in this case.

As set forth previously, the trial court concluded that

the storage agreement was not an enforceable contract

because it ‘‘was little more than a ‘check the box questionnaire,’ ’’ which had ‘‘neither consideration nor a

promise.’’ In support of this conclusion, it cited Rucker

v. Rucker, Docket No. A16-0942, 2016 WL 7439094

(Minn. App. December 27, 2016).

Although a disposition agreement between progenitors is presumed enforceable between them; e.g., In re

Marriage of Rooks, supra, 429 P.3d 592; there must be

an offer and acceptance of definite terms. See, e.g.,

Saint Bernard School of Montville, Inc. v. Bank of

America, 312 Conn. 811, 830, 95 A.3d 1063 (2014). Also,

‘‘a contract must be supported by valuable consideration.’’ Connecticut National Bank v. Voog, 233 Conn.

352, 366, 659 A.2d 172 (1995). ‘‘Consideration consists

of a benefit to the party promising, or a loss or detriment

to the party to whom the promise is made.’’ (Internal

quotation marks omitted.) Viera v. Cohen, 283 Conn.

412, 440–41, 927 A.2d 843 (2007). ‘‘[T]he exchange of

promises is sufficient consideration . . . .’’ Christophersen v. Blount, 216 Conn. 509, 511 n.3, 582 A.2d 460

(1990). In the present case, the trial court found that

there were no promises exchanged between the parties

and no consideration. To the extent that the trial court

found that there was no exchange of promises and, thus,

no consideration, we review the trial court’s findings

for clear error. See, e.g., Viera v. Cohen, supra, 442; see

also id. (whether agreement is supported by consider-
ation is factual issue reviewed under clearly erroneous

standard). To the extent that the trial court found that

there was insufficient consideration, our review is plenary. See, e.g., Milaneseo v. Calvanese, 92 Conn. 641,

643, 103 A. 841 (1918) (adequacy of consideration is

conclusion of law subject to plenary review).6

Neither party contests the existence of their offer

and acceptance of definite terms. They each offered

one another the opportunity to create pre-embryos by

contributing gametic material under the terms spelled

out in the agreement, including the unambiguous condition that the pre-embryos would be discarded if they

ever divorced. Each party accepted this offer by signing

the agreement, even specifically indicating their ‘‘understand[ing], agree[ment] and consent’’ that the preembryos would be discarded upon divorce by initialing

directly below that option in the agreement. If there

was any doubt, they further indicated their assent by

performing (i.e., their contribution of gametic material).

Moreover, the parties do not dispute that, to the

extent that they entered into a contract, the contract

is enforceable as against each other. We note that other

jurisdictions have determined that a pre-embryo storage

agreement, entered into by a fertility clinic and the

progenitors, that provides for the disposition of the preembryos is presumed enforceable not only against the

clinic but also as between the progenitors. See Kass

v. Kass, supra, 91 N.Y.2d 565 (‘‘[a]greements between

progenitors, or gamete donors, regarding disposition of

their pre-zygotes should generally be presumed valid

and binding, and enforced in any dispute between

them’’); see also In re Marriage of Rooks, supra, 429

P.3d 592 (holding ‘‘that a court should look first to

any existing agreement expressing the spouses’ intent

regarding disposition of the couple’s remaining preembryos in the event of divorce’’); Roman v. Roman,

supra, 193 S.W.3d 48 (noting that case law evinces

‘‘emerging majority view that written embryo agreements between embryo donors and fertility clinics . . .

are valid and enforceable’’).

The trial court’s finding that the storage agreement

lacked a mutual exchange of promises between the

plaintiff and the defendant and, thus, lacked consideration was clearly erroneous for three reasons. First, the

parties made mutual promises to contribute gametic

material. Specifically, in exchange for the plaintiff’s

promise to contribute gametic material under the terms

of the agreement, the defendant promised to contribute

gametic material under the terms of the agreement,

and vice versa. Moreover, in exchange for the certainty

provided by the parties’ election of a disposition in the

event of divorce, the center promised to store the preembryos. Thus, all parties to the agreement received

consideration. Additionally, to the extent that the trial

court found that this exchange of promises was inade-
quate consideration, as a matter of law, we disagree.

Although no court has directly addressed the issue in

the context of pre-embryo disposition agreements,

courts and commentators have opined that this

exchange of promises is sufficient. See, e.g., Roman v.

Roman, supra, 193 S.W.3d 50 n.14 (‘‘consideration in

embryo agreements is the gamete donation process that

both husband and wife experience’’); D. Forman,

‘‘Embryo Disposition and Divorce: Why Clinic Consent

Forms Are Not the Answer,’’ 24 J. Am. Acad. Matrim.

Law. 57, 103 n.180 (2011) (‘‘contracts also typically

require consideration, which in this type of case may

be provided by the gamete donation process undergone

by both husband and wife’’). Generally, though, it is

well settled that ‘‘the exchange of promises is sufficient

consideration . . . .’’ Christophersen v. Blount, supra,

216 Conn. 511 n.3.

Second, the trial court’s focus on the checkbox nature

of the storage agreement to conclude that the agreement was unenforceable was misplaced. An agreement

in which parties indicate rights or responsibilities by

checking a box is not insufficient for that reason alone.

Checkboxes, sometimes accompanied by the parties’

initials, are routinely used in a wide range of important

and legally binding documents. Even Connecticut trial

courts ‘‘routinely use’’ checkbox forms to issue legally

binding orders. In re Leah S., 284 Conn. 685, 687 n.2,

935 A.2d 1021 (2007). In the context of pre-embryo

disposition agreements, several courts have held that

the agreements were enforceable when progenitors

indicated a disposition choice in some manner other

than by writing it out in full. See, e.g., Terrell v. Torres,

supra, 246 Ariz. 316 (progenitors ‘‘selected and initialed’’

next to disposition choice); Kass v. Kass, supra, 91

N.Y.2d 566–67 (progenitors signed consents indicating

their dispositional intent). Moreover, any suggestion

that the checkboxes were evidence that the parties had

not seriously considered the issue is contradicted by

the storage agreement itself and the testimony of

both parties.7

Third, the trial court’s reliance on Rucker v. Rucker,

supra, 2016 WL 7439094, also was misplaced. That case

involved a storage agreement between progenitors and

a fertility clinic that included a checkbox term providing

for ‘‘ ‘transfer’ ’’ of the pre-embryos upon divorce. Id.,

*9. The Minnesota Court of Appeals held that the trial

court had misinterpreted the word ‘‘transfer.’’ Id., *10.

The appeals court then provided the correct interpretation and remanded the case to the trial court to decide

how the pre-embryos should be distributed in light of

this new interpretation. Id., *11. The court did not even

remotely suggest that the checkbox nature of the agreement was relevant (much less significant), as the trial

court did in this case. See id., *9–11.

Therefore, we conclude that the parties had an
enforceable agreement.

Because we determine that there was an enforceable

contract, the defendant’s claims that,in the absence of a

contractual agreement, a pre-embryo is not ‘‘property’’

under § 46b-81 because it is a human life or, if it is

‘‘property,’’ that a trial court should employ a presumption in favor of its preservation because it is a human

life, necessarily fail. The defendant’s claims presuppose

that there was no enforceable contract. The defendant

does not argue that if there is an enforceable contract,

there should be a presumption in favor of preservation.

Thus, because we determine that there was an enforceable contract, the defendant’s claims that the trial court

should have either awarded the pre-embryos to the

party seeking to preserve them or applied a presumption in favor of preservation fail.

To the extent that the defendant responds that there

is no enforceable contract because, as a general matter

of law, any agreement providing for the disposition of

a pre-embryo, which constitutes human life, is unenforceable, the claim is not reviewable because it was not

preserved at trial, and, therefore, we lack an adequate

record to address it. See footnotes 5 and 8 of this opinion. The defendant did not argue at trial that the agreement was unenforceable because it concerned a human

life. Even if we generously construe his testimony as

legal argument, we conclude that he did not broach

this issue. Rather, his sole point was that he should be

permitted to change his mind. Nor does he even appear

to make this argument on appeal other than through his

general contention that a pre-embryo is a human being.

Whether a pre-embryo is a human being is, at least

in part, a question of fact. It is certainly not a question

an appellate court can determine without some measure

of fact-finding.8 The defendant concedes this. Nevertheless, he offered no evidence at trial to establish it. Further, to the extent that this claim might implicate constitutional rights, it would be reviewable under State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989);

see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015) (modifying third condition of Golding); only if

it were supported by an adequate record. For the reasons just stated, however, it is not supported by an

adequate record. Accordingly, we decline to review

this claim.

IV

We make two additional points to clarify the scope

of our holding. First, our decision applies to contracts

that, if enforced, will not result in procreation. We do

not decide whether the contractual approach applies

in a scenario that would force one party to become

a genetic parent against his or her wishes or, if the

contractual approach does apply, whether such a contract would be unenforceable for other reasons, includ-
ing public policy.

Second, because we conclude that the parties in this

case had an enforceable agreement, we do not decide

what a court must do in the absence of an enforceable

agreement. For example, we leave for another day

whether, in the absence of an enforceable agreement,

balancing or contemporaneous mutual consent is the

appropriate approach, and what the details of such an

approach would entail.

The judgment is reversed insofar as the trial court

determined that the parties’ storage agreement is not

enforceable, the trial court’s order awarding the preembryos to the plaintiff is vacated, and the case is

remanded with direction to order the disposition of the

pre-embryos in accordance with the storage agreement;

the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

1 Although the parties did not introduce any scientific evidence at trial,

like other courts, we take judicial notice of the following basic facts of in

vitro fertilization: ‘‘Typically the [in vitro fertilization] procedure begins with

hormonal stimulation of a woman’s ovaries to produce multiple eggs. The

eggs are then removed by laparoscopy or ultrasound-directed needle aspiration and placed in a glass dish, where sperm are introduced. Once a sperm

cell fertilizes the egg, this fusion, or pre-zygote, divides until it reaches the

four-to-eight cell stages, after which several pre-zygotes are transferred to

the woman’s uterus by a cervical catheter. If the procedure succeeds, an

embryo will attach itself to the uterine wall, differentiate, and develop into

a fetus. As an alternative to immediate implantation, pre-zygotes may be

cryopreserved indefinitely in liquid nitrogen for later use. Pre-embryo is a

medically accurate term for a zygote or fertilized egg that has not been

implanted in a uterus. It refers to the approximately 14-day period of development from fertilization to the time when the embryo implants in the uterine

wall and the primitive streak, the precursor to the nervous system, appears.

An embryo proper develops only after implantation. The term frozen

embryos is a term of art denoting cryogenically preserved pre-embryos.’’

(Internal quotation marks omitted.) McQueen v. Gadberry, 507 S.W.3d 127,

134 n.4 (Mo. App. 2016).

2 The parties were aware that some of the pre-embryos resulting from the

treatment might not be transferred to the plaintiff’s uterus immediately and

could require storage. The storage agreement with the center, which we

will discuss in more detail, informed them: ‘‘If numerous eggs are retrieved

during our (my) cycle, the number of eggs exposed to sperm will be decided

by us (me) and our (my) doctor. If we (I) elect to expose most or all of

our (my) eggs to sperm in order to develop as many embryos as possible,

any viable embryos not transferred to the uterus will be frozen (cryopreserved). . . . [I]f we (I) have a miscarriage, or if a successful pregnancy

does occur but we (I) subsequently desire another child, the frozen embryos

will be available to us (me) for thawing and transfer during a subsequent

menstrual cycle. This procedure may be repeated until all the frozen embryos

have been utilized.’’

3

‘‘[A]lternative methods to preembryo destruction that are currently available . . . include preembryo donation for procreation (essentially, a form

or preembryo ‘adoption’) . . . .’’ O. Lin, ‘‘Bioethics and the Disposition of

Cryopreserved Preembryos: Why Autonomy-Based Contract Theory Does

Not Work,’’ 34 Fam. Advoc. 38, 40 (2011).

4 General Statutes § 46b-81 provides in relevant part: ‘‘(a) At the time of

. . . dissolving a marriage . . . the Superior Court may assign to either

spouse all or any part of the estate of the other spouse. . . .

‘‘(c) In fixing the nature and value of the property, if any, to be assigned,

the court, after considering all the evidence presented by each party, shall

consider the length of the marriage, the causes for the . . . dissolution of

the marriage or legal separation, the age, health, station, occupation, amount

and sources of income, earning capacity, vocational skills, education,

employability, estate, liabilities and needs of each of the parties and the

opportunity of each for future acquisition of capital assets and income. The
court shall also consider the contribution of each of the parties in the

acquisition, preservation or appreciation in value of their respective estates.’’

Although the trial court did not cite § 46b-81, we assume it applied this

statute because it considered several of the factors enumerated in that

statute and held that the pre-embryos were the ‘‘property’’ of the plaintiff.

Regarding § 46b-81, we have stated: ‘‘[T]he trial court need not give each

factor equal weight . . . or recite the statutory criteria that it considered

in making its decision or make express findings as to each statutory factor

. . . .’’ (Internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348,

355, 880 A.2d 872 (2005).

5 We note that the defendant’s precise concerns on appeal are not clear.

He was not represented by counsel in proceedings before the trial court.

On appeal, he submitted his principal brief without counsel, and his only

request for relief was that this court ‘‘certify’’ his case to the United States

Supreme Court as a vehicle for that court’s reconsideration of Roe v. Wade,

410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The defendant then

retained counsel, who submitted a reply brief on his behalf (which made

the claims set forth previously for reversal of the trial court’s judgment)

and represented him at oral argument before this court. At oral argument,

the defendant’s counsel also withdrew his client’s original request to certify

the case to the United States Supreme Court.

The appeal, construed strictly, could be considered moot because this

court cannot grant the defendant his only claim for relief. See, e.g., Seymour

v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002).

This court is not capable of granting the defendant’s original request for

relief, as the United States Supreme Court does not accept certified cases

or questions from state courts. Cf. U.S. Sup. Ct. R. 19 (‘‘[a] United States

court of appeals may certify to this [c]ourt a question or proposition of law

on which it seeks instruction’’). This request also was withdrawn. Further,

it is well established that we are not obligated to review claims raised for

the first time in a reply brief. E.g., Reardon v. Zoning Board of Appeals,

311 Conn. 356, 367 n.10, 87 A.3d 1070 (2014).

Mindful that we construe our rules of practice liberally, especially when

a party is self-represented, we will, in this case, consider the claims that

the defendant raised in his reply brief, but only to the extent that they do

not prejudice the plaintiff and the record supports our review. See Practice

Book § 60-1; Oliphant v. Commissioner of Correction, 274 Conn. 563, 569,

877 A.2d 761 (2005) (‘‘Connecticut courts [are] to be solicitous of pro se

litigants and when it does not interfere with the rights of other parties to

construe the rules of practice liberally in favor of the pro se party’’ [internal

quotation marks omitted]). The plaintiff has not asked us to do otherwise.

6 We also note that intimate partner contracts generally warrant ‘‘special

scrutiny . . . .’’ Bedrick v. Bedrick, supra, 300 Conn. 703. This is justified

by, among other things, the nature of these intimate relationships, in which

partners tend to be less cautious in contracting with one another than they

would be in contracting with others; id.; and by the recognition that events

may occur before the dissolution of the relationship that go beyond their

contemplation at the time they entered into the agreement. See McHugh v.

McHugh, 181 Conn. 482, 485–86, 436 A.2d 8 (1980). Although we see no

abuse of trust (the defendant concedes that he intelligently entered the

agreement) or unforeseen circumstances (the parties’ agreement expressly

contemplates the very event at issue: divorce) in this case that would cause

us to hold that the agreement is unenforceable, we recognize that these

circumstances could arise in other cases.

7 The storage agreement provided, just above the parties’ selection for

disposition upon divorce: ‘‘We (I) understand, agree and consent that if we

divorce . . . .’’ (Emphasis omitted.) The plaintiff also testified that she and

the defendant had expressly discussed the issue of disposition upon divorce:

‘‘When we talked about it, we said, in the event that one of us divorce[s]

or we died or anything like that, that we would. And we talked about that.

That’s when we both signed the contract on the day we went to speak to

the center.

* * *

So, then we spoke about them, and then we agreed that should—in case

of divorce, you know, whichever party initiated it, that we would do this.

So, also the understanding that we agreed upon, that’s what we did. . . .

We both spoke about—we both talked about it, and then we both signed

off on it.’’ The defendant did not expressly confirm that they had discussed

disposition upon divorce but conceded that he had agreed to the disposition

in the storage agreement because ‘‘at the time, I never thought we’d get
divorced, number one; and number two, that’s what my wife wanted, and

I agreed, because I was trying to do as she wanted.’’ His change of heart only

occurred at some point after he had entered the agreement: ‘‘In hindsight,

I realize it was the wrong thing to do, and I’ve changed my mind . . . .’’

8

In concluding that we lack an adequate record for review, we are aware

of the abundance of information outside the record regarding the science

behind in vitro fertilization and on every other aspect of the complex and

difficult issues raised in cases in which it is implicated. We also recognize

that courts occasionally and to varying degrees have taken judicial notice

of this evidence. E.g., McQueen v. Gadberry, supra, 507 S.W.3d 134 n.4

(considering basic scientific evidence related to pre-embryos, even though

‘‘there was no evidence introduced at trial with respect to the science of

[in vitro fertilization], related scientific terms, or the division or cell stages

of the frozen pre-embryos at issue’’). In this light, the defendant notes that

‘‘[s]ome argue [that] the question of when human life beings has been

definitely answered by scientific knowledge,’’ and his counsel at oral argument before this court suggested that we consider the medical literature

referenced by the amicus as evidence of this point. See, e.g., R. Gitchell,

‘‘Should Legal Precedent Based on Old, Flawed, Scientific Analysis Regarding When Life Begins, Continue To Apply to Parental Disputes over the Fate

of Frozen Embryos, When There Are Now Scientifically Known and Observed

Facts Proving Life Begins at Fertilization?’’ 20 DePaul J. Health Care L. 1,

2 (2018) (‘‘[o]bservable facts of human development can be seen in films

of one cell human embryos that were cryopreserved’’). But see, e.g., P.

Peters, ‘‘The Ambiguous Meaning of Human Conception,’’ 40 U.C. Davis L.

Rev. 199, 201 (2006) (‘‘[m]ost of the governmental commissions that have

studied the propriety of scientific research using early embryos have concluded that embryos less than two weeks old are not moral persons’’).

We note, however, the fundamental difference between establishing the

facts of fertilization and establishing that human life begins at fertilization.

We cannot seriously consider the latter issue on a record devoid of any

evidence whatsoever and with an argument aimed only at one facet of this

‘‘difficult question . . . .’’ Roe v. Wade, 410 U.S. 113, 159, 93 S. Ct. 705, 35

L. Ed. 2d 147 (1973); see id. (‘‘We need not resolve the difficult question of

when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the

judiciary, at this point in the development of man’s knowledge, is not in a

position to speculate as to the answer.’’).