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By H. Joseph Gitlin
Woodstock, Illinois
August 11, 2000

Since the birth of the world's first in vitro fertilization ("test tube") baby in 1978, extraordinary advances in reproductive medicine made biological parenthood possible for many individuals suffering from infertility, medical illness, diseases or those at risk for passing on inherited illnesses or genetic disabilities. Assisted reproductive technology has advanced to the point that a baby may be produced through in vitro fertilization (IVF) with only one sperm and one egg.

But as usual the law is behind technological advances. These technologies have created a host of novel legal issues, among the issues being the disposition of the parties' frozen embryos when they are divorcing.

Usually more embryos are fertilized than are implanted, and the remaining embryos are usually frozen. Sometimes embryos are also frozen by couples who do not want to have children now, but want to guard against future infertility. Unless a couple has an enforceable written agreement for the disposition of frozen embryos in the event of the death of one of them, or divorce, or the lapse of a certain amount of time, litigation may arise regarding the disposition of the embryos.

To date there are four review court cases which addressed the subject in the matrimonial law context. In all cases one spouse wanted destruction of the embryos whereas the other spouse sought their preservation. The four cases, J.B. v. M.B., Kass v. Kass, Davis v. Davis, and A.Z. v. B.Z. involved ex-wives and ex-husbands fighting over the disposition of unused frozen embryos. The most recent of these cases is the New Jersey J.B. v. M.B., No. A-1544-98T3, in which the opinion was filed June 1, 2000. This case will be reviewed below. The other three frozen embryo cases will also be discussed.

In J.B. v. M.B. the parties were married and efforts to have a child were unsuccessful. The inability to have a child was due to the wife's endometriosis and blockage in a fallopian tube. There were not any infertility problems attributable to the husband. The couple decided to use in vitro fertilization (IVF). They contracted with the Cooper Center for In Vitro Fertilization and went ahead with the IVF process. During the IVF process, the wife became pregnant and delivered a baby girl in March 1996. Extra embryos were frozen for future use in the event the initial implantation was unsuccessful. Several months after the birth of the child, the parties were divorced. The property settlement agreement reserved "a decision concerning the parties' cryopreserved preembryos/embryos."

The contract between the parties and Cooper contained a clause regarding the disposition of the frozen embryos: "The control and disposition of the embryos belongs to the Patient and her Partner. You will be asked to execute the attached legal statement regarding control and disposition of cryopreserved embryos." The attached statement with Cooper stated "all control, direction and ownership of our tissues will be relinquished to the IVF Program under the following circumstances: [1] A dissolution of marriage by court order, unless the court specifies who takes control and direction of the tissues***."

In a post divorce proceeding regarding the disposition of the frozen embryos, the wife sought destruction of the embryos and filed a motion for summary judgment alleging that "[d]efendant and I planned to raise a family together as a married couple. I endured the in vitro process and agreed to preserve the preembryos for our use in the context of an intact family." The wife indicated that she no longer wanted the embryos implanted in her, did not want them donated and did not want the ex-husband to retain them for his own use. The ex-husband alleged that the ex-wife agreed to donate the unused embryos to infertile couples. The ex-husband presented corroborating evidence that the ex-wife agreed to donate the embryos to the ex-husband's childless sister.

The trial court determined that the parties engaged in IVF "to create their child within the context of their marriage." Now that the parties are divorced, the trial judge stated, "the reason for the creation and preservation of embryos no longer applied." The judge also placed emphasis on the fact that the ex-husband was capable of fathering children in another relationship. The ex-husband appealed arguing that a trial was necessary to establish the parameters regarding disposition of the embryos. The ex-husband further argued that the trial court's ruling violated his constitutional rights, including his right to procreate, equal protection and due process of law.

The appellate court primarily addressed the constitutional right to procreate or not to procreate. The opinion stated: [T]he wife's right not to become a parent seemingly conflicts with the husband's right to procreate. The conflict, however, is more apparent than real. Recognition and enforcement of the wife's right would not seriously impair the husband's right to procreate. Though his right to procreate using the wife's egg would be terminated, he retains the capacity to father children. On the other hand, enforcing the husband's right to procreate using the embryos at issue in this case could result in the birth of the wife's biological child. Even if the wife were relieved of the financial and custodial responsibility for her child, the fact that her biological child would exist in an environment controlled by strangers is understandably unacceptable to the wife.

In upholding the trial court's ruling in favor of the wife's position that the embryos should be destroyed, the appellate court noted that destruction of the embryos would not impair the husband's reproductive rights. The appellate court acknowledged that there were three reported appellate decisions regarding the disposition of cryopreserved embryos. The Tennessee case of Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992) involved the disposition of seven frozen embryos in a divorce matter. In Davis, it was the ex-husband who wanted the destruction of the embryos. The ex-wife wanted them donated. The Davis court resolved the issue by balancing the interests in "the right to procreational autonomy." In weighing the factors in favor of the ex-husband, the Davis court determined that gestation of the embryos "would impose unwanted parenthood" on [the ex-husband] with all of its possible financial and psychological consequences." The impact on the ex-husband outweighed the ex-wife's interest in donating the embryos.

The J.B. appellate court next analyzed the New York case of Kass v. Kass, 663 N.Y.S.2d 581, 235 A.D. 2d 150 (N.Y. App. Div. 1997) which also involved the post-divorce disposition of frozen embryos. In Kass, the trial court gave custody of the embryos to the wife and held that the female has "exclusive decisional authority over the fertilized eggs...just as a pregnant woman has exclusive decisional authority over a nonviable fetus." The appellate court reversed and held that the parties' agreement regarding the disposition of the embryos should control. It was noted that the parties' signed agreement "unambiguously indicated the parties' desire to donate the pre-zygotes for research purposes if the parties could not reach a joint decision regarding disposition. In upholding the validity of the agreement, the Kass court emphasized the need for such agreements, and that they "should generally be presumed valid and binding."

The most recent Massachusetts case of A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000) was also cited by the J.B. appellate court. A.Z., again involved frozen embryos in divorce proceedings. The wife conceived by IVF and had twins. Two vials of frozen embryos were stored. Later and without informing the husband, the wife had one of the vials thawed and an embryos was implanted. The process did not result in a pregnancy. The husband filed for divorce. At the time of the divorce, one vial remained. The husband filed a motion to obtain a permanent injunction prohibiting the wife from using the remaining vile. The consent forms, which were signed by the husband in blank, were completed by the wife to provide that on separation the embryos were to be given to the wife for implantation. The trial court granted the husband's injunction. The Supreme Judicial Court of Massachusetts affirmed on the basis that the consent form was not binding in light of the circumstances surrounding the execution and lack of the husband's intent that the embryos be preserved for the wife's use. The appellate court in J.B. concluded : [E]ven had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement. It is well established that courts will not enforce contracts that violate public policy. The decisions in the three cases of J.B. v. M.B. , Davis and A.Z. focused on the right, or right not to, procreate and utilized a balancing test. The balancing test weighed in favor of the party objecting to their preservation because of the concept of not promoting unwanted parenthood upon an unwilling party. Both the Kass and A.Z. courts addressed the issues of the parties' "agreement" as a controlling factor. However, the A.Z. court would not enforce such an agreement because it determined they were against public policy whereas the court in Kass ruled that agreements regarding the disposition of embryos should be presumed valid and binding. Kass does not seem to be in line with the three other decisions which lean heavily towards the objecting party's right not to procreate, the right not to bring unwanted children into this world or risk the embryos being placed in the hands of a complete stranger.

As the cases develop, it appears that the trend is drifting in favor of destroying the embryos based upon the one party's constitutional right not to procreate and as the J.B. court stated "forced procreation is not an area amenable to judicial enforcement." At least not yet.

I chair the Laws of Reproduction and Genetic Technology Committee of the Family Law Section of the American Bar Association. For the past several years this committee has been drafting a model act which addresses assisted reproductive technology (ART) which includes in vitro fertilization. The position taken by the drafting committee is that IVF should not be performed unless there is a written agreement between the parties as to the disposition of the unused frozen embryos and that the written agreement controls.

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