If you entered into an agreement with a former spouse as to what will happen after a divorce to any embryos conceived through in vitro fertilization, be prepared to abide by the contract’s terms.
Much as New York’s highest court did almost two decades ago, a California judge recently denied a divorced woman’s request to get pregnant using frozen embryos that both her and her ex-husband agreed would not be used in the event of divorce.
When Mimi Lee, who had cancer, and her husband Stephen Findley began participating in in vitro fertilization in 2010, they had a written agreement that any embryos that resulted from the process would be “thawed and discarded” if they ever divorced, which they ultimately did.
Lee, however, wanted to have a child using the embryos over Findley’s objections. In enforcing the agreement and ordering the embryos destroyed, the California judge held that:
“Decisions about family and children are often difficult, and can be wrenching when they become disputes. The policy best-suited to ensuring that these disputes are resolved in a clear-eyed manner – unswayed by the turmoil, emotion, and accusations that attend to contested proceedings in family court – is to give effect to the intention of the parties at the time of the decision at issue.”
The New York Court of Appeals came to a similar conclusion in a 1998 ruling, relying on the same principles of contract law the California judge applied. In its unanimous decision in Kass v. Kass regarding five “pre-zygotes” that the couple had produced before their divorce, the Court concluded 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. 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.”
As alluded to by the California judge, the issues involved in such cases are emotionally-charged and implicate very personal and complicated questions. Nevertheless, contracts about how and when frozen embryos can be used will be treated substantially like any other contract. Barring claims of fraud or duress, the putative parents will be expected to abide by their agreement.
If you are considering a divorce or have a family law issue that you’d like to discuss with an experienced New York and New Jersey attorney, give Daniel Clement of Clement Law a call at (212) 683-9551 or fill out our online form to arrange for a consultation. We look forward to assisting you.