Click name to view winning essay in PDF format.
Ms. Christine Mandell
University of Virginia School of Law
Ms. Saundra McDowell
Regent University School of Law
Mr. Damon Ritenhouse
DePaul College of Law
2010 Problem Presented for Essay Response
Mike and Robyn created 18 embryos through IVF utilizing Mike’s sperm and donor eggs. They live and used the services of a fertility clinic in Louisiana. The egg donor, a former Rhodes Scholar, signed an agreement irrevocably giving her eggs to Mike and Robyn and terminating her parental rights to any children born from embryos created using her eggs. However, the agreement also had a clause requiring Mike and Robyn to obtain her consent prior to transferring the embryos to any other couple. There was no such requirement if the embryos were donated for research. The egg donor received $25,000 for the donation of her eggs.
After having 3 children from the embryos created, Mike and Robyn donated their remaining 6 embryos to Bill and Susan, who live in Georgia. Both couples signed an agreement in front of a notary public and witnesses wherein Mike and Robyn irrevocably gave their embryos to Bill and Susan. The agreement recited that Mike and Robyn had full legal authority to donate the embryos.
The embryos were shipped to Bill and Susan’s fertility clinic in Georgia where four embryos were thawed and the two that survived were transferred into Susan. Susan gave birth to Ryan, a healthy baby boy. As allowed under Georgia law, Bill and Susan filed a Petition for Adoption and were granted an Adoption Decree for Ryan.
Approximately one year later, the egg donor learned through a friend who worked at the fertility clinic used by Mike and Robyn that some of their embryos had been shipped to Georgia. The egg donor contacted Mike and Robyn and was shocked to learn that another family had given birth to a child using her eggs. She filed a breach of contract lawsuit against Mike and Robyn seeking unspecified financial damages and custody of any remaining embryos.
What are the arguments which the egg donor would use to support her claims?
Advise the clinic as to the following:
What response would Mike and Robyn make to those arguments?
How should the judge decide the question of (1) the breach of contract, (2) the issue of damages and (3) the return of the remaining embryos?
Partially motivated by a desire to mitigate any liability they may have to the egg donor, Mike and Robyn also filed an action in Georgia seeking to terminate their agreement as to, and regain custody of, the remaining two embryos. What would be the legal strategy for Mike and Robyn and how should the court decide?