|||Court of Appeals of New York
|||91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350, 1998.NY.1047 <http://www.versuslaw.com>
|||May 07, 1998
|||MAUREEN KASS, APPELLANT,
STEVEN KASS, RESPONDENT.
|||Counsel: Vincent F. Stempel, for appellant. Linda T. Armatti-Epstein,
for respondent. New York Civil Liberties Union, amicus curiae.
|||Opinion by Chief Judge Kaye. Judges Titone, Bellacosa, Smith, Levine,
Ciparick and Wesley concur.
|||The opinion of the court was delivered by: Kaye, Chief Judge
|||Although in vitro fertilization (IVF) procedures are now more than two
decades old and in wide use, this is the first such dispute to reach our
Court. Specifically in issue is the Disposition of five frozen, stored pre-embryos,
or "pre-zygotes," *fn1
created five years ago, during the parties' marriage, to assist them in
having a child. Now divorced, appellant (Maureen Kass) wants the pre-zygotes
implanted, claiming this is her only chance for genetic motherhood; respondent
(Steven Kass) objects to the burdens of unwanted fatherhood, claiming that
the parties agreed at the time they embarked on the effort that in the present
circumstances the pre-zygotes would be donated to the IVF program for approved
research purposes. Like the two-Justice plurality at the Appellate Division,
we conclude that the parties' agreement providing for donation to the IVF
program controls. The Appellate Division order should therefore be affirmed.
|||Appellant and respondent were married on July 4, 1988, and almost immediately
began trying to conceive a child. While appellant believed that, owing to
prenatal exposure to diethylstilbestrol (DES) she might have difficulty
carrying a pregnancy to term, her condition in fact was more serious--she
failed to become pregnant. In August 1989, the couple turned to John T.
Mather Memorial Hospital in Port Jefferson, Long Island and, after unsuccessful
efforts to conceive through artificial insemination, enrolled in the hospital's
|||Typically, the IVF procedure begins with hormonal stimulation of a woman's
ovaries to produce multiple eggs. The eggs are then removed by laparoscopy
or ultrasound-directed needle aspiration and placed in a glass dish, where
sperm are introduced. Once a sperm cell fertilizes the egg, this fusion--or
pre-zygote--divides until it reaches the four- to eight-cell stage, after
which several pre-zygotes are transferred to the woman's uterus by a cervical
catheter. If the procedure succeeds, an embryo will attach itself to the
uterine wall, differentiate and develop into a fetus. As an alternative
to immediate implantation, pre-zygotes may be cryopreserved indefinitely
in liquid nitrogen for later use. Cryopreservation serves to reduce both
medical and physical costs because eggs do not have to be retrieved with
each attempted implantation, and delay may actually improve the chances
of pregnancy. At the same time, the preservation of "extra" pre-zygotes--those
not immediately implanted--allows for later disagreements, as occurred here.
|||Beginning in March 1990, appellant underwent the egg retrieval process
five times and fertilized eggs were transferred to her nine times. She became
pregnant twice--once in October 1991, ending in a miscarriage and again
a few months later, when an ectopic pregnancy had to be surgically terminated.
|||Before the final procedure, for the first time involving cryopreservation,
the couple on May 12, 1993 signed four consent forms provided by the hospital.
Each form begins on a new page, with its own caption and "Patient Name."
The first two forms, "GENERAL INFORMED CONSENT FORM NO. 1: IN VITRO
FERTILIZATION AND EMBRYO TRANSFER" and "ADDENDUM NO. 1-1,"
consist of 12 single-spaced typewritten pages explaining the procedure,
its risks and benefits, at several points indicating that, before egg retrieval
could begin, it was necessary for the parties to make informed decisions
regarding Disposition of the fertilized eggs. ADDENDUM NO. 1-1 concludes
|||"We understand that it is general IVF Program Policy, as medically
determined by our IVF physician, to retrieve as many eggs as possible and
to inseminate and transfer 4 of those mature eggs in this IVF cycle, unless
our IVF physician determines otherwise. It is necessary that we decide *
* * [now] how excess eggs are to be handled by the IVF Program and how many
embryos to transfer. We are to indicate our choices by signing our initials
where noted below.
|||"1. We consent to the retrieval of as many eggs as medically determined
by our IVF physician. If more eggs are retrieved than can be transferred
during this IVF cycle, we direct the IVF Program to take the following action
|||"(a) The excess eggs are to be inseminated and cryopreserved for
possible use by us during a later IVF cycle. We understand that our choice
of this option requires us to complete an additional Consent Form for Cryopreservation"
(emphasis in original).
|||The "additional Consent Form for Cryopreservation," a seven-page,
single-spaced typewritten document, is also in two parts. The first, "INFORMED
CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES," provides:
|||"III. Disposition of Pre-Zygotes.
|||We understand that our frozen pre-zygotes will be stored for a maximum
of 5 years. We have the principal responsibility to decide the Disposition
of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from
storage for any purpose without the written consent of both of us, consistent
with the policies of the IVF Program and applicable law. In the event of
divorce, we understand that legal ownership of any stored pre-zygotes must
be determined in a property settlement and will be released as directed
by order of a court of competent jurisdiction. Should we for any reason
no longer wish to attempt to initiate a pregnancy, we understand that we
may determine the Disposition of our frozen pre-zygotes remaining in storage.
|||"The possibility of our death or any other unforeseen circumstances
that may result in neither of us being able to determine the Disposition
of any stored frozen pre-zygotes requires that we now indicate our wishes.
THESE IMPORTANT DECISIONS MUST BE DISCUSSED WITH OUR IVF PHYSICIAN AND OUR
WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO.
2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED
ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH
THE IVF PROGRAM" (emphasis in original).
|||The second part, titled "INFORMED CONSENT FORM NO. 2--ADDENDUM NO.
2-1: CRYOPRESERVATION - STATEMENT OF DISPOSITION," states:
|||"We understand that it is the IVF Program Policy to obtain our informed
consent to the number of pre-zygotes which are to be cryopreserved and to
the Disposition of excess cryopreserved pre-zygotes. We are to indicate
our choices by signing our initials where noted below.
|||"1. We consent to cryopreservation of all pre-zygotes which are not
transferred during this IVF cycle for possible use * * * by us in a future
|||"2. In the event that we no longer wish to initiate a pregnancy or
are unable to make a decision regarding the Disposition of our stored, frozen
pre-zygotes, we now indicate our desire for the Disposition of our pre-zygotes
and direct the IVF program to (choose one):
|||"(b) Our frozen pre-zygotes may be examined by the IVF Program for
biological studies and be disposed of by the IVF Program for approved research
investigation as determined by the IVF Program" (emphasis in original).
|||On May 20, 1993, doctors retrieved 16 eggs from appellant, resulting in
nine pre-zygotes. Two days later, four were transferred to appellant's sister,
who had volunteered to be a surrogate mother, and the remaining five were
cryopreserved. The couple learned shortly thereafter that the results were
negative and that appellant's sister was no longer willing to participate
in the program. They then decided to dissolve their marriage. The total
cost of their IVF efforts exceeded $75,000.
|||With divorce imminent, the parties themselves on June 7, 1993--barely
three weeks after signing the consents--drew up and signed an "uncontested
divorce" agreement, typed by appellant, including the following:
|||"The Disposition of the frozen 5 pre-zygotes at Mather Hospital is
that they should be disposed of [in] the manner outlined in our consent
form and that neither Maureen Kass[,] Steve Kass or anyone else will lay
claim to custody of these pre-zygotes."
|||On June 28, 1993, appellant by letter informed the hospital and her IVF
physician of her marital problems and expressed her opposition to destruction
or release of the pre-zygotes.
|||One month later, appellant commenced the present matrimonial action, requesting
sole custody of the pre-zygotes so that she could undergo another implantation
procedure. Respondent opposed removal of the pre-zygotes and any further
attempts by appellant to achieve pregnancy, and counterclaimed for specific
performance of the parties' agreement to permit the IVF program to retain
the pre-zygotes for research, as specified in ADDENDUM NO. 2-1. By stipulation
dated December 17, 1993, the couple settled all issues in the matrimonial
action except each party's claim with respect to the pre-zygotes, which
was submitted to the court for determination. While this aspect of the case
remained open, a divorce judgment was entered on May 16, 1994.
|||In connection with the continuing litigation over the pre-zygotes, by
letter dated January 9, 1995 the parties agreed that the matter should be
decided on the existing record.
|||Supreme Court granted appellant custody of the pre-zygotes and directed
her to exercise her right to implant them within a medically reasonable
time. The court reasoned that a female participant in the IVF procedure
has exclusive decisional authority over the fertilized eggs created through
that process, just as a pregnant woman has exclusive decisional authority
over a nonviable fetus, and that appellant had not waived her right either
in the May 12, 1993 consents or in the June 7, 1993 "uncontested divorce"
|||While a divided Appellate Division reversed that decision (235 AD2d 150),
all five Justices unanimously agreed on two fundamental propositions. First,
they concluded that a woman's right to privacy and bodily integrity are
not implicated before implantation occurs. Second, the court unanimously
recognized that when parties to an IVF procedure have themselves determined
the Disposition of any unused fertilized eggs, their agreement should control.
|||The panel split, however, on the question whether the agreement at issue
was sufficiently clear to control Disposition of the pre-zygotes. According
to the two-Justice plurality, the agreement unambiguously indicated the
parties' desire to donate the pre-zygotes for research purposes if the couple
could not reach a joint decision regarding disposition. The Concurring Justice
agreed to reverse but found the consent fatally ambiguous. In his view,
but for the most exceptional circumstances, the objecting party should have
a veto over a former spouse's proposed implantation, owing to the emotional
and financial burdens of compelled parenthood. A fact-finding hearing would
be authorized only when the party desiring parenthood could make a threshold
showing of no other means of achieving genetic or adoptive parenthood, which
was not shown on this stipulated record.
|||While agreeing with the concurrence that the informed consent document
was ambiguous, the two-Justice Dissent rejected a presumption in favor of
either party and instead concluded that the fate of the pre-zygotes required
a balancing of the parties' respective interests and burdens, as well as
their personal backgrounds, psychological makeups, financial and physical
circumstances. Factors would include appellant's independent ability to
support the child and the sincerity of her emotional investment in this
particular reproductive opportunity, as well as the burdens attendant upon
a respondent's unwanted fatherhood and his motivations for objecting to
parenthood. Finding that the record was insufficient to permit a fair balancing,
and that the parties' January 9, 1995 stipulation that there would be no
further submissions violated public policy because it precluded full review,
the Dissent would remit the case to the trial court for a full hearing.
|||We now affirm, agreeing with the plurality that the parties clearly expressed
their intent that in the circumstances presented the pre-zygotes would be
donated to the IVF program for research purposes.
|||A. The Legal Landscape Generally. We begin analysis with a brief description
of the broader legal context of this dispute. In the past two decades, thousands
of children have been born through IVF, the best known of several methods
of assisted reproduction. Additionally, tens of thousands of frozen embryos
annually are routinely stored in liquid nitrogen canisters, some having
been in that state for more than ten years with no instructions for their
use or disposal (see, New York State Task Force on Life and the Law, Assisted
Reproductive Technologies: Analysis and Recommendations for Public Policy
[April 1998], at 289 ["Assisted Reproductive Technologies"); Caplan,
Due Consideration: Controversy in the Age of Medical Miracles 63 ).
As science races ahead, it leaves in its trail mind-numbing ethical and
legal questions (see generally, Robertson, Children of Choice: Freedom and
the New Reproductive Technologies  ["Children of Choice"]).
|||The law, whether statutory or decisional, has been evolving more slowly
and cautiously. A handful of states--New York not among them--have adopted
statutes touching on the Disposition of stored embryos (see, e.g., Fla Stat
Ann Section 742.17 [West 1997] [couples must execute written agreement providing
for Disposition in event of death, divorce or other unforeseen circumstances];
NH Rev Stat Ann Section 168-B:13-15, 18 [Supp 1992] [couples must undergo
medical exams and counseling; 14-day limit for maintenance of ex uteropre-zygotes];
La Rev Stat Ann Section 9:121-133 [West 1991] [pre-zygote considered "juridical
person" that must be implanted]. *fn2
|||In the case law, only Davis v Davis (842 SW2d 588, 604 [Tenn 1992], cert
denied sub nom. Stowe v Davis, 507 US 911) attempts to lay out an analytical
framework for disputes between a divorcing couple regarding the disposition
of frozen embryos (see also, York v Jones, 717 F Supp 421 [ED Va]; Del Zio
v Columbia Presbyt. Hosp., No. 74 Civ. 3588, slip op. [SDNY April 12, 1978];
AZ v BZ, slip op. [Mass Prob Ct March 25, 1996] [no docket number]). Having
declared that embryos are entitled to "special respect because of their
potential for human life" (842 SW2d at 597, supra), Davis recognized
the procreative autonomy of both gamete providers, which includes an interest
in avoiding genetic parenthood as well as an interest in becoming a genetic
parent. In the absence of any prior written agreement between the parties--which
should be presumed valid, and implemented--according to Davis, courts must
in every case balance these competing interests, each deserving of judicial
respect. In Davis itself, that balance weighed in favor of the husband's
interest in avoiding genetic parenthood, which was deemed more significant
than the wife's desire to donate the embryos to a childless couple.
|||Although statutory and decisional law are sparse, abundant commentary
offers a window on the issues ahead, particularly suggesting various approaches
to the issue of Disposition of pre-zygotes. Some commentators would vest
control in one of the two gamete providers (see, e.g., Poole, Allocation
of Decision-Making Rights to Frozen Embryos, 4 Am J Fam L 67  [pre-zygotes
to party wishing to avoid procreation]; Andrews, The Legal Status of the
Embryo, 32 Loy L Rev 357  [woman retains authority when she desires
to implant]). Others would imply a contract to procreate from participation
in an IVF program (see, e.g., Note, Davis v Davis: What About Future Disputes?,
26 Conn L Rev 305 ; Comment, Frozen Embryos: Towards An Equitable
Solution, 46 U Miami L Rev 803 ).
|||Yet a third approach is to regard the progenitors as holding a "bundle
of rights" in relation to the pre-zygote that can be exercised through
joint Disposition agreements (see, Robertson, Prior Agreements for disposition
of Frozen Embryos, 51 Ohio St L Rev 407  ["Prior Agreements"];
Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va L
Rev 437  ["Early Embryos"]). The most recent view--a "default
rule"--articulated in the report of the New York State Task Force on
Life and the Law, is that, while gamete bank regulations should require
specific instructions regarding Disposition, no embryo should be implanted,
destroyed or used in research over the objection of an individual with decision-making
authority (see, Assisted Reproductive Technologies, at 317-320, supra).
|||Proliferating cases regarding the Disposition of embryos, as well as other
assisted reproduction issues, will unquestionably spark further progression
of the law. *fn3
|||What is plain, however, is the need for clear, consistent principles to
guide parties in protecting their interests and resolving their disputes,
and the need for particular care in fashioning such principles as issues
are better defined and appreciated. Against that backdrop we turn to the
|||B. The Appeal Before Us. Like the Appellate Division, we conclude that
disposition of these pre-zygotes does not implicate a woman's right of privacy
or bodily integrity in the area of reproductive choice; nor are the pre-zygotes
recognized as "persons" for constitutional purposes (see, Roe
v Wade, 410 US 113, 162; Byrn v New York City Health & Hosps. Corp.,
31 NY2d 194, 203, appeal dsmd 410 US 949). The relevant inquiry thus becomes
who has Dispositional authority over them. Because that question is answered
in this case by the parties' agreement, for purposes of resolving the present
appeal we have no cause to decide whether the pre-zygotes are entitled to
"special respect" (cf., Davis v Davis, 842 SW2d 588, 596-597,
supra; see also, Ethics Comm. of the Am. Fertility Soc'y, Ethical Considerations
of the New Reproductive Technologies, 46 Fertility & Sterility 1S, 32S
[Supp. 1 1986]). *fn4
|||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 (see, Davis v Davis, 842 SW2d at 597,
supra; see also, Early Embryos, 76 Va L Rev at 463-469, supra). Indeed,
parties should be encouraged in advance, before embarking on IVF and cryopreservation,
to think through possible contingencies and carefully specify their wishes
in writing. Explicit agreements avoid costly litigation in business transactions;
they are all the more necessary and desirable in personal matters of reproductive
choice, where the intangible costs of any litigation are simply incalculable.
Advance directives, subject to mutual change of mind that must be jointly
expressed, both minimize misunderstandings and maximize procreative liberty
by reserving to the progenitors the authority to make what is in the first
instance a quintessentially personal, private decision. Written agreements
also provide the certainty needed for effective operation of IVF programs
(see, Prior Agreements, 51 Ohio St L Rev at 414-418, supra; see also, Children
of Choice, 107, 113, supra).
|||While the value of arriving at explicit agreements is apparent, we also
recognize the extraordinary difficulty such an exercise presents. All agreements
looking to the future to some extent deal with the unknown. Here, however,
the uncertainties inherent in the IVF process itself are vastly complicated
by cryopreservation, which extends the viability of pre-zygotes indefinitely
and allows time for minds, and circumstances, to change. Divorce; death,
disappearance or incapacity of one or both partners; aging; the birth of
other children are but a sampling of obvious changes in individual circumstances
that might take place over time.
|||These factors make it particularly important that courts seek to honor
the parties' expressions of choice, made before disputes erupt, with the
parties' overall direction always uppermost in the analysis. Knowing that
advance agreements will be enforced underscores the seriousness and integrity
of the consent process; advance agreements as to Disposition would have
little purpose if they were enforceable only in the event the parties continued
to agree. To the extent possible, it should be the progenitors--not the
State and not the courts--who by their prior directive make this deeply
personal life choice.
|||Here, the parties prior to cryopreservation of the pre-zygotes signed
consents indicating their Dispositional intent. While these documents were
technically provided by the IVF program, neither party disputes that they
are an expression of their own intent regarding Disposition of their pre-zygotes.
Nor do the parties contest the legality of those agreements, or that they
were freely and knowingly made. The central issue is whether the consents
clearly express the parties' intent regarding Disposition of the pre-zygotes
in the present circumstances. Appellant claims the consents are fraught
with ambiguity in this respect; respondent urges they plainly mandate transfer
to the IVF program.
|||The subject of this dispute may be novel but the common law principles
governing contract interpretation are not. Whether an agreement is ambiguous
is a question of law for the courts (see, Van Wagner Adv. Corp. v S &
M Enters., 67 NY2d 186, 191). Ambiguity is determined by looking within
the four corners of the document, not to outside sources (see, W.W.W. Assocs.
v Giancontieri, 77 NY2d 157, 162-163). And in deciding whether an agreement
is ambiguous courts "should examine the entire contract and consider
the relation of the parties and the circumstances under which it was executed.
Particular words should be considered, not as if isolated from the context,
but in light of the obligation as a whole and the intention of the parties
as manifested thereby. Form should not prevail over substance and a sensible
meaning of words should be sought" (William C. Atwater & Co., Inc.
v Panama R.R. Co., 246 NY 519, 524).
|||Where the document makes clear the parties' overall intention, courts
examining isolated provisions "'should then choose that construction
which will carry out the plain purpose and object of the [agreement]'"
(Williams Press, Inc. v State of New York, 37 NY2d 434, 440, quoting Empire
Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248-249).
|||Applying those principles, we agree that the informed consents signed
by the parties unequivocally manifest their mutual intention that in the
present circumstances the pre-zygotes be donated for research to the IVF
|||The Conclusion that emerges most strikingly from reviewing these consents
as a whole is that appellant and respondent intended that disposition of
the pre-zygotes was to be their joint decision. The consents manifest that
what they above all did not want was a stranger taking that decision out
of their hands. Even in unforeseen circumstances, even if they were unavailable,
even if they were dead, the consents jointly specified the Disposition that
would be made.
|||That sentiment explicitly appears again and again throughout the lengthy
documents. Words of shared understanding --"we," "us"
and "our"--permeate the pages. The overriding choice of these
parties could not be plainer: "We have the principal responsibility
to decide the Disposition of our frozen pre-zygotes. Our frozen pre-zygotes
will not be released from storage for any purpose without the written consent
of both of us, consistent with the policies of the IVF Program and applicable
law" (emphasis added).
|||That pervasive sentiment--both parties assuming "principal responsibility
to decide the Disposition of [their] frozen pre-zygotes"--is carried
forward in ADDENDUM NO. 2-1:
|||"In the event that we * * * are unable to make a decision regarding
disposition of our stored, frozen pre-zygotes, we now indicate our desire
for the Disposition of our pre-zygotes and direct the IVF Program to:
|||"Our frozen pre-zygotes may be examined by the IVF Program for biological
studies and be disposed of by the IVF Program for approved research investigation
as determined by the IVF Program."
|||Thus, only by joint decision of the parties would the pre-zygotes be used
for implantation. And otherwise, by mutual consent they would be donated
to the IVF program for research purposes.
|||The Appellate Division plurality identified, and correctly resolved, two
claimed ambiguities in the consents. The first is the following sentence
in INFORMED CONSENT NO. 2: "In the event of divorce, we understand
that legal ownership of any stored pre-zygotes must be determined in a property
settlement and will be released as directed by order of a court of competent
jurisdiction." Appellant would instead read that sentence: "In
the event of divorce, we understand that legal ownership of any stored pre-zygotes
must be determined by a court of competent jurisdiction." That is not,
however, what the sentence says. Appellant's construction ignores the direction
that ownership of the pre-zygotes "must be determined in a property
settlement"-- words that also must be given meaning, words that connote
the parties' anticipated agreement as to Disposition. Indeed, appellant
and respondent did actually reach a settlement stipulation, reserving only
the issue of the pre-zygotes (the subject of their earlier consents).
|||Additionally, while extrinsic evidence cannot create an ambiguity in an
agreement, the plurality properly looked to the "uncontested divorce"
instrument, signed only weeks after the consents, to resolve any ambiguity
in the cited sentence. Although that instrument never became operative,
it reaffirmed the earlier understanding that neither party would alone lay
claim to possession of the pre-zygotes. *fn5
|||Apart from construing the sentence in isolation, the plurality also read
it in the context of the consents as a whole. Viewed in that light, we too
conclude that the isolated sentence was not Dispositional at all but rather
was "clearly designed to insulate the hospital and the IVF program
from liability in the event of a legal dispute over the pre-zygotes arising
in the context of a divorce" (235 AD2d at 160). To construe the sentence
as appellant suggests--surrendering all control over the pre-zygotes to
the courts--is directly at odds with the intent of the parties plainly manifested
throughout the consents that Disposition be only by joint agreement.
|||For much the same reason, we agree with the plurality's Conclusion that
ADDENDUM NO. 2-1--the "STATEMENT OF DISPOSITION" --was not strictly
limited to instances of "death or other unforseen circumstances."
Those are contingencies that would be resolved by the ADDENDUM, but they
are not the only ones. We reach this Conclusion, again, from reviewing the
provisions in isolation and then in the context of the consents as a whole.
While we agree that the words "death or unforeseen circumstances"
in INFORMED CONSENT NO. 2 did not create a condition precedent (235 AD2d
at 159), we also note that the present circumstances--including the parties'
inability to reach the anticipated settlement--might well be seen as an
"unforeseen" circumstance. Moreover, viewing the ADDENDUM in isolation,
there is no hint of the claimed condition in the document itself. The document
is a free-standing form, separately captioned and separately signed by the
parties. Finally, viewing the issue in the context of the consents as a
whole, as the plurality noted, "the overly-narrow interpretation advocated
by [appellant] is refuted not only by the broad language of the dispositional
provision itself, but by other provisions of the informed consent document
as well" (235 AD2d at 159).
|||As they embarked on the IVF program, appellant and respondent--"husband"
and "wife," signing as such--clearly contemplated the fulfillment
of a life dream of having a child during their marriage. The consents they
signed provided for other contingencies, most especially that in the present
circumstances the pre-zygotes would be donated to the IVF program for approved
research purposes. These parties having clearly manifested their intention,
the law will honor it.
|||Accordingly, the order of the Appellate Division should be affirmed, with
|||Order affirmed, with costs.
|||*fn1 We use the parties' term
"pre-zygotes," which are defined in the record as "eggs which
have been penetrated by sperm but have not yet joined genetic material."
|||*fn2 Recently, the New York Task
Force on Life and the Law issued a comprehensive report, "Assisted
Reproductive Technologies," together with recommendations for regulation.
The report, following two years of study by the full Task Force, addresses
a wide range of relevant subjects, such as the commercial aspects of what
has become a sizable business, and impacts on children born of assisted
reproductive technologies (see also, 1997-1998 NY Senate Bill S 5815 [Nov
24, 1997] [requiring that couples specify in writing how embryos are to
be disposed of before a facility can accept them for storage]).
|||*fn3 Within recent months, for
example, the press has carried news of a divorcing New Jersey couple now
litigating the Disposition of frozen embryos, with the husband wanting them
for implantation in a future spouse and the wife objecting (see, Booth,
Fate Of Frozen Embryos Brings N.J. Again To Bioethics Fore With No Precedent,
Court To Decide On Request To Destroy Fertilized Ova, NJLJ, March 9, 1998,
at 1). And a now-divorced California couple is litigating the issue of support
of a child conceived during their marriage through a donor egg, donor sperm
and surrogate mother (see, Matter of Buzzanca v Buzzanca, 61 Cal App 4th
1410, 72 Cal Rptr 2d 280 [Ct App 4th Dist]; see also, Hernandez & Maharaj,
O.C. Couple Who Used Surrogate Ruled Parents: In Closely Watched Case, Appeals
Court Declares That Intent Is More Important Than Biological Ties, L.A.
Times, March 11, 1998, at A1).
|||*fn4 Parties' agreements may,
of course, be unenforceable as violative of public policy (see, e.g., Domestic
Relations Law Section 121 etseq. [declaring surrogate parenting contracts
contrary to policy, void and unenforceable]; Scheinkman, Practice Commentaries,
McKinney's Cons Laws of NY, Book 14, Domestic Relations Law Section 122,
1998 Pocket Part, at 255 ["commercial surrogacy arrangements involve
a form of procreation for profit, if not prostitution"]). Significantly
changed circumstances also may preclude contract enforcement. Here, however,
appellant does not urge that the consents violate public policy, or that
they are legally unenforceable by reason of significantly changed circumstances.
|||*fn5 As noted by the Appellate
Division, unless public policy is violated, parties to a litigation are
free to chart their own procedural course--as they did here. On January
9, 1995, both sides agreed that the matter should be determined on the submissions,
and one week later plaintiff's attorney indicated that the last affidavit
had been submitted. "The record on which we must rule was thereby established"
(235 AD2d at 162).
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