## Facts

- Arthur “Trip” Witten III and Tamera Jean Witten, while married, pursued in vitro fertilization because Tamera could not conceive without assistance.
- Tamera’s eggs were fertilized with Trip’s sperm; after unsuccessful transfers, 17 fertilized eggs (embryos) remained cryopreserved at the University of Nebraska Medical Center.
- Before treatment, the parties signed medical facility consent forms, including an embryo storage agreement stating embryos could be transferred, released, or otherwise disposed of only with the signed approval of both depositors.
- During dissolution proceedings, Tamera sought control of the embryos to attempt pregnancy; Trip opposed any unilateral use but was willing to consider donation to another couple.
- The district court prohibited either party from transferring, releasing, or using the embryos without the other’s written consent and also entered orders on property division and attorney fees.
- Tamera appealed the embryo ruling; Trip cross-appealed aspects of the property division and the award of trial attorney fees to Tamera.

## Issues

1. What legal framework governs disposition or use of cryopreserved embryos when the genetic progenitors disagree in dissolution proceedings.
2. Whether the medical facility’s informed-consent and storage documents control the dispute between the progenitors.
3. Whether one party may use embryos to attempt pregnancy over the other party’s objection, and whether a custody/best-interests analysis applies.
4. Whether the district court’s cash equalization payment and trial attorney-fee award should be modified.

## Decision

- The Supreme Court of Iowa held the medical facility consent documents did not control the parties’ dispute as a binding allocation of decision-making authority between them.
- The court adopted a contemporaneous mutual consent approach: no use or disposition of the embryos may occur without the current agreement of both progenitors.
- The court affirmed the injunction barring either party from transferring, releasing, or using the embryos without the other’s written consent.
- The court rejected treating the embryos as children and declined to apply a best-interests standard.
- On cross-appeal, the court modified the property division by replacing a cash equalization payment with an equivalent portion of Trip’s retirement account.
- The court affirmed the award of trial attorney fees to Tamera.
- Disposition: affirmed on appeal; modified on cross-appeal.

## Legal Principles

- In disputes between genetic progenitors over cryopreserved embryos, Iowa applies contemporaneous mutual consent: each progenitor retains an ongoing veto over use or disposition absent current agreement.
- Medical facility informed-consent and storage forms may inform context but do not necessarily operate as controlling contracts between progenitors for post-dissolution disputes.
- When no mutual present consent exists, courts may order that embryos remain in storage, consistent with applicable storage arrangements and orders.
- Embryos are not treated as children for purposes of custody determinations; a best-interests-of-the-child standard does not govern embryo disposition disputes.
- The interest in avoiding forced genetic parenthood is given substantial weight when one party seeks use over the other’s objection.
- In equitable distribution, an appellate court may restructure an equalization mechanism (e.g., retirement account allocation instead of cash) to reach a fair result with fewer practical burdens.

## Conclusion

The court required contemporaneous mutual consent for any use or disposition of the parties’ cryopreserved embryos, thereby preventing unilateral implantation over objection, while also modifying the dissolution property division’s payment structure and affirming trial attorney fees.


In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003)