At Law: Meaning What You Sign

Abstract

The creation of multiple embryos through ovarian stimulation has greatly improved the efficacy of in vitro fertilization (IVF). However, it has also led to conflicts over embryos that are not immediately implanted. With little legislation on these issues, the courts are now writing the rules for disposition of frozen embryos. It is now settled that the couple providing the gametes has dispositional authority over the embryos, and that both parties must consent before embryos can be implanted, discarded, donated, used in research, or stored for future use.[1] But what should be made if the parties disagree, as sometimes happens when they divorce? The Tennessee Supreme Court in Davis v. Davis in 1992 created a decisional framework that would enforce a couple's prior agreement for disposition of embryos.[2] If they had no such agreement, Davis required destruction or nontransfer of the embryos, unless the party seeking implantation could show that she or he had no alternative way to reproduce. Although the Davis solution has been widely praised, the question of whether it would be followed in other states remained open. The New York Court of Appeals in Kass v. Kass has now confirmed that the first part of the Davis approach--the enforcibility of prior agreements--will control in New York, and most likely other states as they confront this issue.[3] The question of outcome if there is no valid agreement must await later decisions. Maureen and Steven Kass married and sought to have children. Problems in conception led two years later to undergo the first of five cycles of IVF. One pregnancy miscarried, another ended in ectopic pregnancy. The fifth cycle produced nine embryos, four of which were placed in the uterus of Maureen's sister, who had volunteered to serve as a surrogate because of Maureen's difficulties in maintaining pregnancy. The five remaining embryos were cryopreserved, and consent forms signed for disposition if they divorced. When no pregnancy resulted, the couple decided to dissolve their marriage. Maureen Kass sued to obtain sole custody of the remaining embryos so that she could undergo another implantation procedure. Steven Kass counterclaimed that their prior agreement required that the embryos be donated to the IVF program for research. The trial judge ruled in Ms. Kass's favor, finding that there had been no prior agreement for disposition, and that the legal rule that allows women to control whether in vivo conceptions are carried to term or aborted should apply to in vitro conceptions as well, even if pregnancy has not yet occurred. The Appellate Division of the Supreme Court reversed. All five justices agreed that location of the embryos outside the woman's body mattered, and thus was not controlled by the rule that applies in the case of coital conception. A majority of the justices sided with the husband, two on the basis of finding a dear prior agreement and one on the ground that the party wishing to avoid procreation should always prevail. The New York Court of Appeals, like the Appellate Division and Davis, held that the question of disposition of frozen embryos does not implicate a woman's right of privacy or bodily integrity, nor that embryos are for constitutional purposes. The relevant inquiry thus concerned who had dispositional authority over the embryos. Because of the need for clear, consistent principles to guide clinics and persons undergoing IVF, it held that agreements 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 (p. 5). Such a rule has merit because it would maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision (p. 5). In addition, it would avoid costly litigation and provide the certainty needed for effective operation of IVF programs. …