Embryos and Cloning/Abortion and Reproduction Law

Brief - NJ Establishes Standards for Embryo Disposition Disputes - J.B. v. M.B., 2001 WL 909294 (lower court is 331 N.J.Super. 223, 751 A.2d 613) (N.J.Super.A.D. Jun 01, 2000)

J.B. and M.B. were a married couple who sought fertility treatment.  As part of the treatment 11 embryos were created for implantation, some of which were stored under cryogenic conditions for future use.  Before these were implanted, J.B. and M.B. divorced and this case arose from a dispute over the disposition of the embryos.  J.B. wants them destroyed and M.B. wants them implanted in another partner.  J.B. argues that this violates her right to control her reproduction, M.B., counters that her rights are not implicated because implanting the embryos into a third party does not impinge on her bodily integrity and destroying them will infringe his right reproductive rights.

The court first looked to the contract they signed specifying certain conditions when the embryos could be destroyed:

"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 attachment, executed by J.B. and M.B., provides further detail in respect of the parties' "control and disposition":

I, J.B. (patient), and M.B. (partner) agree that all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances:

1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues, or

2. In the event of death of both of the above named individuals, or unless provisions are made in a Will, or

3. When the patient is no longer capable of sustaining a normal pregnancy, however, the couple has the right to keep embryos maintained for up to two years before making a decision [regarding a] "host womb" or

4. At any time by our/my election which shall be in writing, or

5. When a patient fails to pay periodic embryo maintenance payment."

The court found that this did not clearly determine the appropriate disposition of the embryos under the circumstances of the case.  The court contrasted the instant case with Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998), in which the parties had a clear written agreement to donate the embryos for scientific research unless they agree otherwise.  With no controlling contract, the court then considered the public policy implications of the litigant's claims.

Relying on Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992), in which the court refused to allow an ex-wife to implant frozen embryos, thus forcing her ex-husband to become a father, the court held:

"In the present case, the 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. ... In other words, M.B.'s right to procreate is not lost if he is denied an opportunity to use or donate the preembryos.   M.B. is already a father and is able to become a father to additional children, whether through natural procreation or further in vitro fertilization. In contrast, J.B.'s right not to procreate may be lost through attempted use or through donation of the preembryos. Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions."

The court next turned to an analysis about whether a contract to control the future use of embryos would be against public policy.  J.B. had raised this argument, relying on the earlier Matter of Baby M, 109 NJ 396, 537 A2d 1227 (NJ 1988), which found a contract for surrogacy services against public policy.  The court concluded that contracts that would force a person to become a parent at a future date, when it was against their will at that date, would be against public policy.  However, contracts that provided for the disposal of embryos, which do not raise the same reproductive rights issues, are proper.  The court reserved its decision on whether this policy might be modified if enforcement of the contract left the party infertile, but noted that adoption is still an option.