This case discusses what happens when couples divorce and an argument arises over the disposition of IVF storage material.
EL v. AS, 2025 NY Slip Op 25261 - NY Co. Supreme Court 2025:
"LINDA M. CAPITTI, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this motion to/for Other: AWARD EMBRYOS.
The plaintiff husband ("E.L.") and defendant wife ("A.S.") (collectively, the "parties") were married on December 28, 2016, and this action for divorce commenced on August 10, 2023. During the parties' marriage, they enlisted the services of Boston Reproductive Medicine Physician Group, PLLC, and New York Medical Sciences, P.C., doing business as CCRM Boston and CCRM New York, respectively (collectively, "CCRM," "Practice," or "Lab"), consenting to in vitro fertilization ("IVF") treatment and CCRM's storage of embryos created with the parties' genetic material (see NY St Cts Elec Filing [NYSCEF] Doc Nos. 19, defendant's exhibit A at 1 [hereinafter Declarations of Intent]; 28, plaintiff's exhibit 1; 29, plaintiff's exhibit 2).
The parties attended a preliminary conference on September 24, 2024, thereafter filing letter briefs in October 2024 regarding the issue of the disposition of the parties' cryopreserved embryos under CCRM's control (NY St Cts Elec Filing [NYSCEF] Doc Nos. 7, plaintiff's letter brief; 11, defendant's letter brief). On April 18, 2025, A.S. filed the instant motion by order to show cause seeking an order: "1. Awarding Defendant the parties' [e]mbryos for implantation in accordance with the parties' Declaration of Intent; and 2. Granting such other and further relief as the Court may deem just and proper" (NY St Cts Elec Filing [NYSCEF] Doc No. 22, order to show cause). E.L. subsequently filed a notice of cross-motion seeking an order: "1. Directing [CCRM] to destroy any and all embryos currently being held by CCRM; and 2. For such other and further relief as this Court deems just and proper" (NY St Cts Elec Filing [NYSCEF] Doc No. 25, notice of cross-mot).
BACKGROUND AND ARGUMENTS
From in or about 2015 to 2022, the parties attempted to conceive a child but encountered numerous obstacles doing so. A.S. suffered three miscarriages between 2016 and 2018 from naturally conceived pregnancies. Thereafter, the parties were advised by medical doctors that their only options to have children would be either through fostering, adoption, or assisted reproductive technologies such as IVF. They decided to pursue the latter with CCRM.
The parties memorialized their consent to CCRM's storage and cryopreservation of any embryos created with the parties' genetic material by executing individual, identical documents entitled "Disposition of Embryos: Declaration of Intent" (the "Declarations of Intent" or "Declarations") as recently as September 12, 2020.[1] In their respective Declarations, which are substantively identical in all respects, the parties made several mutual selections determining the disposition of any stored embryos under certain circumstances, such as if either party dies or if the parties "are divorced, dissolve their relationship, or mutually agree to discontinue IVF treatments as a couple" (NYSCEF Doc No. 19, Declarations of Intent at 1).
From late 2019 to 2021, after a medical diagnosis of low anti-Müllerian hormone levels (i.e., indicating a diminished supply of eggs), several miscarriages, and other fertility issues, A.S. underwent five (5) egg retrieval cycles as a part of the IVF process with CCRM. Given A.S.'s history of miscarriages, genetic testing of the parties' embryos prior to implantation was recommended to ensure no abnormalities that, if present, would increase the likelihood of a future miscarriage. The genetic testing that determines whether an embryo is free of chromosomal abnormalities first requires the embryo to be frozen. Out of the twenty-five (25) retrieved eggs over five (5) egg retrieval cycles, only two (2) embryos free of abnormalities were yielded, both in 2021. These two embryos are at the heart of the instant motion.
After the IVF cycles, which "included invasive and painful procedures that were often conducted without anesthesia" and had "immense physical, emotional[,] and financial costs," A.S. underwent laparoscopic surgery to remove scar tissue resulting from endometriosis so as to increase the chances of a successful pregnancy (NY St Cts Elec Filing [NYSCEF] Doc No. 17, defendant's affirmation in support of mot ¶ 9). The surgery revealed adenomyosis, which occurs when tissue from the uterine lining grows into the uterine wall, thus further increasing the risk of pregnancy complications. Upon the filing of this motion, A.S. alleges that she is entering perimenopause, having irregular periods and hot flashes, and that she therefore "cannot retrieve any further healthy eggs to fertilize" (id. ¶ 12). Furthermore, A.S. claims that because she was advised that her chances of achieving a live birth are greater if her eggs were fertilized prior to cryopreservation, she has no cryogenically frozen unfertilized eggs. Consequently, "all that remains of [A.S.'s] genetic material available for procreation are the two (2) chromosomally normal [e]mbryos, which are cryo-stored and are the subject of this motion" (id.). Put directly, A.S. alleges that the "sole and only opportunity in [her] lifetime to have a genetically related child is by use of the [e]mbryos" (id.).
As the parties' Declarations of Intent are central to the instant motion, the Court must first analyze the language and expressed intent therein in accordance with basic contract law principles. At the outset, the parties' signed and executed Declarations state:
"Because of the possibility of our separation, divorce, death or incapacitation after embryos have been produced, I/we understand it is important to decide on the disposition of any embryos (fresh or cryopreserved) that remain in Lab in these situations. . . . I/We agree that Practice and Lab are authorized to act on our choices indicated below, so far as it is practical. . . . I/We also agree that in the event that either our chosen dispositional choices are not available or I/we fail to preserve any choices made herein, Practice and Lab is authorized to discard and destroy our embryos" (NYSCEF Doc No. 19, Declarations of Intent at 1).
The parties opted, respectively, to award complete dispositional control of the stored embryos to the surviving party in the event that one of them predeceases the other, and award the embryos for research purposes in the event that both die simultaneously (see id. at 2). The option to destroy the embryos, while listed as a dispositional choice under each contingency (e.g., the death of one or both of the parties, divorce, separation, etc.), was not chosen by the parties to occur under any circumstances (see id. at 2-3).
Section IV of the Declarations of Intent, titled "Divorce, Dissolution of Relationship, or Discontinuation of IVF Treatment," provides three distinct options regarding the disposition of the embryos in the event of a divorce, separation, or cessation of IVF treatments, of which the parties must choose only one:
"In the event patient and partner are divorced, dissolve their relationship, or mutually agree to discontinue IVF treatments as a couple, I/we agree that the embryos should be disposed of in the following manner (initial one only): [1] A court decree, settlement agreement, or written instructions signed by each party and notarized will be presented to Practice and Lab directing use to achieve a pregnancy in one of us or anonymously donate the embryos to another couple for reproductive purposes (if offered by Practice and Lab). [2] Award for research purposes. [3] Destroy the embryos" (id. at 2-3).
In the event that the parties divorce, separate, or discontinue IVF treatment, the parties mutually elected for the first option: to dispose of the cryopreserved embryos by "[a] court decree, settlement agreement, or written instructions signed by each party and notarized . . . [which] direct[s] use to achieve a pregnancy in [A.S.]" or, in the alternative, "anonymously donate the embryos to another couple for reproductive purposes" (id. at 3). The parties explicitly rejected awarding the embryos for research purposes or having them destroyed in the event of a divorce, separation, or cessation of IVF treatments (see id.).
The Declarations of Intent conclude with a clause detailing legal considerations, namely that "[t]he law regarding embryo cryopreservation, subsequent thaw and use, and parent-child status of any resulting child(ren) is, or may be, unsettled in the state in which the patient, partner, or any donor currently or in the future lives, or the state in which Practice and Lab is located" as well as an acknowledgment that the parties were advised to consult a lawyer with experience in reproductive law and embryo cryopreservation and disposition if any questions or concerns arise concerning the status of the embryos (id. at 4). Above the signature lines, the Declarations state: "Our signatures below certify the disposition selections we have made above. We understand that we can change our selections in the future, but need mutual and written agreement as outlined above" (id.). In fine print below the signature lines, the Declarations state, inter alia: "I understand that participation is purely voluntary and that my refusal to participate or withdraw from the program at any time will not involve any penalty or loss of benefit to which I am otherwise entitled" (id.).
The defendant argues that the Declarations of Intent specifically govern the disposition of the embryos in the event of the parties' divorce or separation, and that the Declarations "narrowly authorize[] this Court to make only of one two choices: (a) release the [e]mbryos to one of the parties for implantation, or, (b) donate the Embryos to a third party couple for implantation . . ." (NY St Cts Elec Filing [NYSCEF] Doc No. 18, defendant's memorandum of law at 1). The defendant further argues that the parties "agreed to restrict the Court's authority with respect to the [e]mbryos" to ensure that they would not be destroyed or used for research by expressly rejecting these options in their Declarations of Intent (id. at 2; see NYSCEF Doc No. 19, Declarations of Intent at 3). The defendant contends that "had there been any doubt at all about embryo disposition after a potential separation, [she] would have kept at least a portion of [her] eggs to be fertilized later with donor sperm" (NYSCEF Doc No. 17, defendant's affirmation in support of mot ¶ 9).
The plaintiff's cross-motion seeks an order directing CCRM "to destroy any and all embryos currently being held by CCRM" (NYSCEF Doc No. 25, notice of cross-mot). The plaintiff's chief argument is that the Declarations of Intent, executed by the parties in 2020, are unenforceable in light of the passage of the Family Court Act § 581-306 in 2021, which requires intended parents to consult independent legal counsel before entering embryo disposition agreements. The parties do not contest that they did not consult independent legal counsel before executing the Declarations of Intent. The plaintiff contends that the Declarations of Intent are therefore unenforceable pursuant to the statute.
The plaintiff argues in the alternative that if the Declarations of Intent are enforceable, the terms therein authorize him to unilaterally withdraw his consent from being bound by any mutual elections made therein. In advancing this argument, the plaintiff relies on one sentence contained in fine print at the end of the Declarations, which states: "I understand that participation is purely voluntary and that my refusal to participate or withdraw from the program at any time will not involve any penalty or loss of benefit to which I am otherwise entitled" (NYSCEF Doc No. 19, Declarations of Intent at 4).
In an email addressed to CCRM staff on March 21, 2024, the plaintiff stated that he "do[es] not consent to [the defendant]'s use of the embryos" and "put CCRM on notice that the status quo must remain, [and] that no action should be taken with respect to the embryos until a court order or written agreement between the parties has been furnished" (NY St Cts Elec Filing [NYSCEF] Doc No. 30, plaintiff's exhibit 3). The plaintiff contends that this email constitutes his withdrawal of consent and overrides the selections he made the signed Declarations of Intent, and that "in any event . . . the only possible outcome this court can direct is to destroy the embryos" (NY St Cts Elec Filing [NYSCEF] Doc No. 26, attorney affirmation in support of notice of cross-mot and in opp to order to show cause ¶ 8 [hereinafter attorney affirmation in opp]).
DISCUSSION
I. Enforceability of the Parties' Declarations of Intent in Light of Family Court Act § 581-306
At the outset, the Court will address the plaintiff's argument that the parties' executed Declarations of Intent are unenforceable pursuant to the New York Legislature's enactment of Family Court Act § 581-306, which initially came into effect on February 15, 2021.[2] Family Court Act § 581-306 controls the effect of embryo disposition agreements between intended parents which transfer legal rights and dispositional control to one intended parent. Subdivision [a] states, in pertinent part:
"An embryo disposition agreement between intended parents with joint dispositional control of an embryo shall be binding under the following circumstances: (1) it is in writing; [and] (2) each intended parent had the advice of independent legal counsel prior to its execution, which may be paid for by either intended parent. . . ." (Family Court Act § 581-306 [a] [1]-[2]).
Section VIII of the Declarations of Intent, titled "Legal Considerations and Legal Counsel," contains an acknowledgment that the parties "have been informed that [they] may wish to consult a lawyer who is experienced in the areas of reproductive law and embryo cryopreservation and disposition if we have any questions or concerns . . . about any . . . aspect of this consent and agreement" (NYSCEF Doc No. 19, Declarations of Intent at 4). Before executing the Declarations of Intent, neither the plaintiff nor defendant consulted with independent legal counsel, which is now a requirement under Family Court Act § 581-306 [a] [2]. However, critically, the most recent Declarations of Intent executed by the parties on September 12, 2020 predate Family Court Act § 581-306's effective date of February 15, 2021 (see Family Court Act § 581-306).
In one of its seminal cases concerning the retroactive application of a federal statute, the U.S. Supreme Court affirmed that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted (Landgraf v. USI Film Prods., 511 US 244, 265 [1994]; see Herrera-Molina v. Holder, 597 F3d 128, 133 [2d Cir 2010]). A fundamental canon of statutory construction is that courts are not to give statutes retroactive effect "unless the language expressly or by necessary implication requires it" (Article 13 LLC v. Ponce De Leon Fed. Bank, 132 F4th 586, 594 [2d Cir 2025]; Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 584 [1998]). In determining whether a state statute may be applied retroactively under New York law, the paramount consideration is the legislative intent, of which the statute's plain text is the clearest indicator (Article 13 LLC, 132 F4th at 593; Town of Aurora v. Vil. of E. Aurora, 32 NY3d 366, 372 [2018]). However, the court should evaluate the statute as a whole, with consideration for "its various sections . . . together and with reference to each other" (Article 13 LLC, 132 F4th at 593-594; Town of Aurora, 32 NY3d at 372).
In light of these principles, the U.S. Supreme Court developed a two-step inquiry for establishing whether a statute may be retroactively applied; the first step of the inquiry is for the court to ascertain whether the statute's "proper reach" has been "expressly prescribed" therein (Landgraf, 511 US at 280). If so, the inquiry ends. Absent express language, however, the court must determine whether retroactive application of the statute "would impair rights a party possessed when [they] acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed" (id.; see Herrera-Molina, 597 F3d at 134). If retroactive application of the statute "attaches new legal consequences to events completed before its enactment," a court may find after a reasoned inquiry it is impermissibly retroactive (Herrera-Molina, 597 F3d at 134).
Here, no express statutory language nor its legislative history indicates that Family Court Act § 581-306 retroactively governs the validity or enforceability of contracts executed before the statute's effective date of February 15, 2021. Absent this express language, it is clear that retroactive application of the statute to the Declarations of Intent would not only impair the rights the parties exercised to freely execute the Declarations in 2020 without consulting with independent legal counsel, but also impose a retroactive duty on the parties to have done so, despite the statute not yet existing and the Declarations' affirmative notice to the parties that they "may wish to consult a lawyer," not that they must consult one (NYSCEF Doc No. 19, Declarations of Intent at 4) (emphasis added).
Moreover, the plaintiff cites no legal authority supporting retroactive application of Family Court Act § 581-306 to the parties' Declarations of Intent absent any explicit statutory language to that effect, and even accuses the defendant and her counsel of "academically dishonest[] and ethically tenuous" conduct by not mentioning the statute in their supporting papers (NYSCEF Doc No. 26, attorney affirmation in opp ¶ 8). The Court disagrees with this characterization of the defendant's conduct, especially in light of the plaintiff's failure to reconcile or acknowledge the fact that the statute purportedly invalidating the Declarations did not exist at the time they were executed. Furthermore, if this Court were to find that Family Court Act § 581-306 retroactively invalidates the parties' Declarations, not only would the parties' rights be impermissibly impaired, but an unacceptable public policy concern would also arise: the status and enforceability of all embryo disposition agreements executed in New York State before February 15, 2021 would be called into question. Accordingly, the Court presumes that Family Court Act § 581-306 is prospectively applicable beginning on its effective date of February 15, 2021 and does not retroactively render the parties' Declarations of Intent unenforceable.
II. Case Law Addressing Embryo Disposition Agreement Disputes in the Event of Separation or Divorce
As this matter appears to be one of first impression in New York County, the Court is particularly mindful of the gravity of its role as decisionmaker given the sensitive nature of the relief sought. The scarcity of case law addressing embryo disposition agreements in New York is exemplified by the fact that the only two cases cited by the parties in support of their respective positions that bind this Court are Kass v. Kass (91 NY2d 554 [1998]) by the defendant and Finkelstein v. Finkelstein (162 AD3d 401 [1st Dept 2018]) by the plaintiff. The only other New York case cited was K.G. v. J.G. (72 Misc 3d 593 [Sup Ct, Suffolk County 2021]) by the defendant, while the remainder of the plaintiff's cited cases are from jurisdictions outside of New York State. Because of the general dearth of case law regarding disputes arising from embryo disposition agreements, each of the cases cited in support of the parties' respective arguments is addressed and discussed in detail below.
New York's controlling case addressing embryo disposition agreement disputes is Kass v. Kass (91 NY2d 554 [1998]), which A.S. relies upon in arguing her position. Much like the instant case, Kass concerned the disposition of five cryopreserved pre-zygotes[3] created by a couple during their marriage. After the couple divorced, the ex-wife wanted to utilize the frozen pre-zygotes to achieve a pregnancy, as it was "her only chance for genetic motherhood" (id. at 557). The ex-husband objected to her use of the pre-zygotes, arguing that the couple's written agreement executed at the time they began IVF treatment controls the disposition of the pre-zygotes.
Like the parties' Declarations of Intent, the agreement in Kass provided options for the disposition of the couple's stored pre-zygotes: in the event that the parties "no longer wish to initiate a pregnancy or are unable to make a decision regarding the disposition of [their] stored, frozen pre-zygotes," the parties opted for the pre-zygotes to "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" (id. at 559-560). Upon the Kass couple's imminent divorce, the ex-wife informed the hospital and her IVF physician by letter that she opposed the destruction or release of the pre-zygotes pursuant to the agreement. She filed an action requesting sole custody of the pre-zygotes so that she could undergo an implantation procedure and achieve a pregnancy, and the ex-husband subsequently counterclaimed for specific performance of their agreement, which allowed the IVF program to retain the pre-zygotes for research purposes.
Upon examining the couple's executed agreement, the New York Court of Appeals denied the ex-wife's request for sole custody of the pre-zygotes. The Kass Court reasoned:
"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. 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. . . . 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. . . .
[T]he 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' over-all 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" (id. at 565-566) (citations omitted).
In Kass, the divorced couple signed consent agreements indicating their intent as to who has dispositional authority of the pre-zygotes. Neither of them disputed that they are an expression of their own intent, nor did they contest the legality of the agreements, that they were freely and knowingly made, or that the agreements violate public policy or are unenforceable due to significantly changed circumstances.[4] After reviewing the agreements, the Court of Appeals found that the consent agreements signed by the parties "unequivocally manifest their mutual intention that in the present circumstance the pre-zygotes be donated for research to the IVF program" (id. at 567). The Kass Court ultimately found:
"As they embarked on the IVF program, [the parties] 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" (id. at 569).
In addition to Kass v. Kass (91 NY2d 554 [1998]), the defendant cites a Suffolk County Supreme Court case in support of her argument, K.G. v. J.G. (72 Misc 3d 593 [Sup Ct, Suffolk County 2021]). In K.G., like Kass and the instant case, a couple contracted for dispositional authority of stored embryos created with their genetic material via written agreement with an IVF provider. The K.G. agreement provided three options if the couple divorced in the future: "(1) allow the plaintiff alone to have the embryos used for any purpose, including to establish a pregnancy; (2) the defendant alone to have the embryos to use in any manner including to establish a pregnancy in another woman; or (3) have the embryos discarded" (id. at 599-600). The couple chose to allow the plaintiff complete control over the embryos upon their divorce instead of awarding them to the defendant or discarding them. The agreement further stated that if the parties cannot agree on the disposition of any stored embryos in the future, that the IVF provider "will not release them without a court order" (id. at 601). The plaintiff wife argued that, pursuant to the plain language of the contract, she was entitled to dispositional control of the embryos upon the couple's divorce. The defendant husband argued, inter alia, that the contract is unenforceable, or in the alternative, that he was permitted to withdraw his consent pursuant to the agreement, thus triggering the disposal of the embryos.
In arguing for the unenforceability of the agreement, the defendant claimed, inter alia, that he did not want to have any future children with the plaintiff, which constitutes significantly changed circumstances warranting a finding that the agreement is unenforceable. The K.G. Court noted that "the parties specifically considered having a future co-parenting relationship after a divorce when they made the election . . . to give the plaintiff control over the embryos should there be a divorce with the specific right to establish a pregnancy" (id. at 598). The defendant further argued that enforcing the agreement could result in child support obligations for any embryo the defendant implants resulting in a live birth. The K.G. Court found this argument equally unavailing, stating that the "specific possibility of paying child support is not unforeseen either and should have been considered by the defendant before he entered into the contract and agreed to give the plaintiff dispositional authority over the embryos in the event of a divorce" (id. at 599).
In contending that he was permitted to withdraw from the contract, thus triggering the disposal of the embryos, the defendant cited to the agreement, which, like the parties' Declarations of Intent, states the following: "I/we understand that we may . . . decide to withdraw from participation in this Program . . ." (id. at 600). Unlike the Declarations of Intent, the agreement in K.G. additionally states that the couple "further understand[s] that, at some future time, I/we (emphasis added) may elect to . . . have the embryos discarded . . ." (id.). After an examination of the contract as a whole, this apparent grant of dispositional authority to one party absent the other party's consent via the "I/we" clause was nevertheless insufficient for the K.G. Court to allow the defendant to unilaterally withdraw his consent (id.). In finding that the defendant did not have the ability pursuant to the above provisions to unilaterally opt to discard the embryos, the K.G. Court reasoned: "Courts should examine the entire contract and particular words should not be considered in isolation but in light of the whole obligation and the intention of the parties manifested by the contract, and form should not prevail over substance" (id. at 601; see Kass, 91 NY2d at 566).
The K.G. Court ultimately awarded the plaintiff dispositional authority of the stored embryos pursuant to the agreement. The K.G. Court found:
"Were this Court to adopt the defendant's interpretation of the [agreement] . . . to read that he alone may elect to discard the embryos, the provisions regarding the dispositional choices elected . . . would be rendered meaningless. This court should not adopt an interpretation of one provision which operates to leave other provisions without force and effect" (id. at 602, citing Corhill Corp. v. S. D. Plants, Inc., 9 NY2d 595, 599 [1961]).
In arguing that the embryos stored with CCRM must be destroyed, the plaintiff cites several cases from different jurisdictions in support: A.Z. v. B.Z. (431 Mass 150 [2000]), J.B. v. M.B. (170 NJ 9 [2001]), and Davis v. Davis (842 SW2d 588 [Tenn 1992]). While each of these cases similarly concern a separated or divorced couple's disagreement over the disposition of stored embryos upon executing disposition agreements with an IVF provider, all are distinguishable from the instant matter.
A.Z. v. B.Z. (431 Mass 150 [2000]) concerns a divorcing couple who entered into consent agreements with an IVF clinic that addressed the disposition of their stored pre-embryos in the event that they "become separated" (id. at 154). In all executed versions of the agreement, the wife specified that if the couple separates, "the preembryos were to be returned to the wife for implantation" (id. at 155). The Supreme Judicial Court of Massachusetts found, inter alia, that "the form does not state, and the record does not indicate, that the husband and wife intended the consent form to act as a binding agreement between them should they later disagree as to the disposition" (id. at 158). Regarding the separation provision, the A.Z. Court noted:
"Because this dispute arose in the context of a divorce, we cannot conclude that the consent form was intended to govern in these circumstances. Separation and divorce have distinct legal meanings. . . . Because divorce legally ends a couple's marriage, we shall not assume, in the absence of any evidence to the contrary, that an agreement on this issue providing for separation was meant to govern in the event of a divorce" (id. at 158-159).
In the instant case, the parties' Declarations of Intent indicate at the outset that the parties are legally bound to the terms therein in the event of a separation or divorce: "Because of the possibility of our separation, divorce, death or incapacitation after embryos have been produced, I/we understand it is important to decide on the disposition of any embryos (fresh or cryopreserved) that remain in Lab in these situations" (NYSCEF Doc No. 19, Declarations of Intent at 1). Further, the record reflects that the parties acknowledged and understood that the Declarations "affect the rights of either of the parties in this action" and that they are "meant to govern in the event of a divorce," as clearly evidenced by the specific course of action consented to by both parties in Section IV of the Declarations in the event they "divorce[] [or] dissolve their relationship" (NY St Cts Elec Filing [NYSCEF] Doc No. 6, preliminary conf order at 3; A.Z., 431 Mass at 159; NYSCEF Doc No. 19, Declarations of Intent at 2-3).
J.B. v. M.B. (170 NJ 9 [2001]) also concerns a divorcing couple who entered into a consent agreement regarding the disposition of stored embryos with an IVF provider. Upon their divorce, the ex-husband wished to utilize the stored embryos to procreate over the ex-wife's objection. The consent form the couple signed stated: "The control and disposition of the embryos belongs to the Patient and her Partner" (id. at 19). The legal statement attached to the consent form, also executed by the couple, stated that "control, direction, and ownership of [their] tissues will be relinquished to the IVF Program" in the event of a "dissolution of [their] marriage by court order, unless the court specifies who takes control and direction of the tissues . . ." (id.).
The Supreme Court of New Jersey determined that the consent form and legal attachment "do not manifest a clear intent by J.B. and M.B. regarding the disposition of the preembryos in the event of `[a] dissolution of their marriage,'" and that the conditional language allowing the parties to obtain a court order directing the disposition of the preembryos indicates that the IVF clinic "obtains control over the preembryos unless the parties choose otherwise in a writing, or unless a court specifically directs otherwise in an order of divorce" (id.). After noting that the legal attachment's conditional language "stands in sharp contrast to the language in the informed consents provided by the hospital in Kass v. Kass (91 NY2d 554 [1998])," the Supreme Court of New Jersey found, "In essence, J.B. and M.B. have agreed only that on their divorce the decision in respect of control, and therefore disposition, of their cryopreserved preembryos will be directed by the court" (id. at 19, 21). As no "formal, unambiguous memorialization of the parties' intentions" existed that was "required to confirm their joint determination," the J.B. Court found that the couple "never entered into a separate binding contract providing for the disposition of the cryopreserved embryos now in possession of the [IVF clinic]" (id. at 21). After discussing the respective interests of the ex-husband and ex-wife,[5] the J.B. Court held that compelling parenthood absent unambiguous memorialization of consent under the circumstances would violate public policy, while also affirming the importance of enforcing embryo disposition agreements as executed (see id. at 29, citing Kass, 673 NYS2d at 179, and Davis, 842 SW2d at 597).
While Section IV of the Declarations and the agreement in J.B. both bestow authority upon a court to determine the disposition of any stored embryos in the event of a dissolution of marriage, the Declarations of Intent constrain the court's authority merely to either directing the embryos be "use[d] to achieve a pregnancy in [A.S.]" or otherwise "anonymously donate[d]" (NYSCEF Doc No. 19, Declarations of Intent at 3). The agreement in J.B., on the other hand, mandates that "all control, direction and ownership of [the couple's] tissues will be relinquished to the IVF Program . . . unless the court specifies who takes control and direction of the tissues" (J.B., 170 NJ at 19) (emphasis added). Critically, the couple in J.B. did not manifest unambiguous mutual consent to a specific course of action upon their divorce beyond relinquishing control of their stored embryos to the IVF Program, and the Supreme Court of New Jersey accordingly refused to grant control and direction of the embryos to the ex-husband amid the ex-wife's objection. The parties in the instant case, however, entered into a "formal, unambiguous memorialization of [their] intentions" that "confirm[s] their joint determination" that the disposition of their cryopreserved embryos in the event of a divorce or separation is to be determined by a "court decree . . . directing use to achieve a pregnancy in [A.S.] or anonymously donate the embryos" absent a settlement agreement or written instructions signed by both parties and notarized (id. at 21; NYSCEF Doc No. 19, Declarations of Intent at 3).
The plaintiff also cites Davis v. Davis (842 SW2d 588 [Tenn 1992]) in support of his argument that this Court should engage in a balancing-of-interests analysis and find after such inquiry that his interest in not procreating outweighs the defendant's interest in procreating (see NYSCEF Doc No. 26, attorney affirmation in opp ¶ 15). However, the plaintiff's argument that a balancing-of-interests analysis is warranted is based on the purported "absence of a previously executed contingency agreement" (NYSCEF Doc No. 26, attorney affirmation in opp ¶ 15). As discussed above, this Court finds that Family Court Act § 581-306 does not retroactively nullify the parties' Declarations of Intent, and thus, the Declarations collectively constitute a previously executed contingency agreement that is still in full force and effect. Before engaging in its balancing-of-interests analysis, the Davis Court acknowledged the potential dispositive effect of a previously executed written agreement on the outcome of litigation:
"At the outset, it is important to note the absence of two critical factors that might otherwise influence or control the result of this litigation: When the Davises signed up for the IVF program at the Knoxville clinic, they did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process. Moreover, there was at that time no Tennessee statute governing such disposition, nor has one been enacted in the meantime" (id. at 590).
The plaintiff's position that there is no written agreement in the instant case, thus triggering a balancing-of-interests analysis, is erroneous. Critically, because E.L. and A.S. executed the Declarations of Intent "specifying what disposition should be made of any unused embryos that might result from the cryopreservation process," undertaking the Davis Court's balancing-of-interests analysis is inapplicable and would blatantly run afoul of Kass's mandate "that courts seek to honor the parties' expressions of choice, made before disputes erupt, with the parties' over-all direction always uppermost in the analysis" (Davis, 842 SW2d at 590; Kass, 91 NY2d at 566). Where, as in Davis, no "expressions of choice [are] made before disputes erupt," a balancing-of-interests analysis may be appropriate and even necessary (Kass, 91 NY2d at 566). This is not the case here.
Lastly, the plaintiff's contention that the defendant "has been clear in her position that she is seeking monetary compensation from [E.L.] in exchange for her agreement to destroy the embryos" is unavailing (NYSCEF Doc No. 26, attorney affirmation in opp ¶ 16). The only evidence submitted in support of this allegation is an email dated March 4, 2024 sent by an attorney from Spodek Law Group to the plaintiff's current counsel (see NY St Cts Elec Filing [NYSCEF] Doc No. 33, plaintiff's exhibit 4). While the email was ostensibly sent on the defendant's behalf, Spodek Law Group does not represent her in the instant divorce action. The email states, in pertinent part:
"[A.S.'s] position has been clear that if the embryos have to be destroyed she will seek mon[e]tary compensation considering the toll her body had taken over the years and how much effort she put into it all. She was never agreeing to settle for no mon[e]t[a]ry compensation and destruction" (id.).
The Court construes the March 4, 2024 email not as a "bad faith attempt to use the frozen pre-embryo as leverage in the divorce proceeding," but merely a notice to opposing counsel that A.S. may take legal action against E.L. "if the embryos have to be destroyed" (NYSCEF Doc No. 26, attorney affirmation in opp ¶ 17, citing In re Marriage of Rooks, 429 P3d 579, 593-594 [Colo 2018]; NYSCEF Doc No. 33, plaintiff's exhibit 4). The record reflects that the defendant wishes to utilize the cryopreserved embryos herself to achieve a pregnancy and does not want them to be destroyed, discarded, or otherwise utilized by any third parties. The defendant's supporting papers note that the parties "specifically declined to have the [e]mbryos awarded for research or be destroyed," as directly evidenced by their signed Declarations of Intent (NYSCEF Doc No. 17, defendant's affirmation in support of mot ¶ 13). Accordingly, the plaintiff's argument regarding the defendant's alleged bad faith is rejected.
III. The Plaintiff's Ability to Unilaterally Withdraw Consent from the Declarations of Intent
The plaintiff's argument that he may unilaterally withdraw his consent from the Declarations of Intent primarily relies on one sentence in the Declarations, as well as the First Department's decision in Finkelstein v. Finkelstein (162 AD3d 401 [1st Dept 2018]). In fine print on the final page, the Declarations state: "I understand that participation is purely voluntary and that my refusal to participate or withdraw from the program at any time will not involve any penalty or loss of benefit to which I am otherwise entitled" (NYSCEF Doc No. 19, Declarations of Intent at 4). The plaintiff argues that this clause permits him to withdraw his consent from the Declarations, thus voiding them and preventing effectuation of any of the parties' dispositional choices therein.
In arguing that this clause permits unilateral withdrawal of consent from the Declarations of Intent, E.L. relies primarily on Finkelstein v. Finkelstein (162 AD3d 401 [1st Dept 2018]). In Finkelstein, the First Department was faced with determining whether a party to an embryo disposition agreement was permitted to withdraw his consent from the agreement pursuant to the agreement's plain language, thus unilaterally voiding the contract. In Finkelstein, a divorcing couple who sought IVF treatment and cryopreservation of embryos during their marriage executed agreements with an IVF provider. The agreements provided for three (3) general options regarding the disposition of the couple's embryos once stored by the IVF provider, and the couple chose "Choice A": "consent to the cryopreservation of embryos for our own use" (id. at 401). The agreement's "Voluntary Participation" paragraph states: "I/We may withdraw my/our consent and discontinue participation at any time . . ." (id. at 402). The agreement's "Authorization" paragraph further provides: "This consent will remain in effect until such time as I notify [the IVF provider] in writing of my/our wish to revoke such consent" (id.). The husband notified the IVF provider in writing of his revocation of consent to the continued use of any of his genetic material, including the embryo created with the wife.
The First Department found that the explicit language contained within the consent agreement "specifies that participation in the procedures involving cryopreservation of embryos is voluntary and that either party may withdraw consent at any time" and that the agreement "is not limited to cryopreservation or storage of the embryos, but includes the future transfer of cryopreserved embryos to the wife's uterus" (id. at 403). The First Department found that the husband's "broadly worded revocation of consent to the continued use of any of his genetic material, including the embryo created with the wife, definitively revoked his consent to the continuation of the IVF process, including implantation by the wife of the embryo at issue here" (id. at 403-404). Thus, the First Department held that, "[a]s one party has withdrawn consent, the remaining cryopreserved embryo may not be used for any purpose by either party" (id. at 404).
However, Finkelstein, while bearing factual similarities to the case at bar, is distinguishable. Notably, unlike the parties' Declarations of Intent and the agreement at issue in K.G. v. J.G. (72 Misc 3d 593 [Sup Ct, Suffolk County 2021]), the agreement in Finkelstein did not provide dispositional options for specific contingencies, such as who is awarded dispositional authority of the embryos upon divorce or separation, or how such authority is to be determined. The agreement in Finkelstein, unlike the Declarations of Intent in the instant case, merely "provided three options concerning use of frozen embryos created from the parties' genetic donations," none of which addressed the disposition of the embryos upon the couple's separation or divorce (Finkelstein, 162 AD3d at 401).
Considering the agreement's silence on the disposition of the embryos under these circumstances in Finkelstein, allowing the husband to unilaterally withdraw his consent pursuant to the agreement's "Voluntary Participation" and "Authorization" clauses is in accord not only with the contract's plain language ("I . . . may withdraw my . . . consent and discontinue participation at any time. . . . This consent will remain in effect until such time as I notify [the IVF provider] in writing of my . . . wish to revoke such consent"), but also with the apparent purpose of the contract: to allow the couple, collectively, to store the embryos "for [their]own use" (id. at 401-402) (emphasis added). Once the husband withdrew his consent, it was no longer possible under the circumstances to cryopreserve the embryos "for [their] own use" absent a specific grant of unilateral dispositional authority to either the husband or the wife (id. at 401) (emphasis added). Put simply, the couple did not contract for any specific course of action in the event of their divorce, separation, or future disagreement, and the agreement thus did not grant unilateral dispositional authority of the embryos to either the husband or the wife under any circumstances.
In the instant case, however, E.L. and A.S. mutually agreed upon precisely what would happen to their cryopreserved embryos if they divorce, separate, or cease receiving IVF treatments. While the First Department recognizes that the agreement in Finkelstein "does not indicate that the court has plenary authority to determine ownership of the embryo in the event of divorce," the parties' Declarations of Intent specifically address the court's role in determining dispositional authority of the parties' two cryopreserved embryos in such circumstances (id. at 403; see NYSCEF Doc No. 19, Declarations of Intent at 2-3). The parties' chosen disposition of the two embryos in the event of their divorce, separation, or mutual agreement to discontinue IVF treatments is as follows:
"[1] A court decree, [2] settlement agreement, or [3] written instructions signed by each party and notarized will be presented to Practice and Lab directing use to [A] achieve a pregnancy in one of us or [B] anonymously donate the embryos to another couple for reproductive purposes (if offered by Practice and Lab) (id. at 3).
Here, it is apparent to the Court that no settlement agreement or signed, notarized written instructions are forthcoming, nor does either party argue that the embryos should be anonymously donated to another couple for reproductive purposes.[6] Therefore, pursuant to the parties' dispositional election in Section IV of the Declarations, upon the parties' divorce, separation, or mutual agreement to discontinue IVF treatments, "the embryos should be disposed of [via] court decree . . . [that] will be presented to Practice and Lab directing use to achieve a pregnancy in one of us . . ." (id. at 2-3). In mutually consenting to this specific arrangement, the parties unequivocally and explicitly declined to "award [the embryos] for research purposes" or "destroy the embryos" in the event of their divorce, separation, or discontinuation of IVF treatments (id. at 3). The plaintiff's contention that "the only possible outcome this court can direct is to destroy the embryos" is erroneous, as destroying the embryos was never contemplated by the parties to occur under any circumstances, particularly upon their divorce or separation (NYSCEF Doc No. 26, attorney affirmation in opp ¶ 8; see NYSCEF Doc No. 19, Declarations of Intent at 2-3). This Court cannot order the destruction of the embryos, as doing so would impermissibly disturb the parties' unambiguous manifestation of their mutual intent to not destroy the cryopreserved embryos in the event of their divorce or separation (see NYSCEF Doc No. 19, Declarations of Intent at 3).
Furthermore, the plaintiff's likening of the single sentence in fine print on the final page of the Declarations to the "Voluntary Participation" and "Authorization" clauses within the agreement permitting withdrawal of consent from the agreement in Finkelstein is unavailing. Put simply, there would be no purpose contracting for dispositional authority of the parties' embryos in the event they divorce or separate—circumstances in which disagreement between the parties is particularly foreseeable—if consent may be unilaterally withdrawn once the parties actually divorce or separate. Moreover, the Declarations of Intent state at the outset: "Because of the possibility of our separation [or] divorce . . . after embryos have been produced, I/we understand it is important to decide on the disposition of any embryos (fresh or cryopreserved) that remain in Lab in these situations" (id. at 1). This statement stressing the significance of the parties' choices, in conjunction with the Declarations' mandate that the parties "need mutual and written agreement . . . [to] change [their] selections in the future," makes abundantly clear that the parties' elections therein are legally binding even in the event of a later disagreement and that unilateral withdrawal of consent is explicitly prohibited (id. at 4). If consent could be unilaterally withdrawn upon a divorce or separation, it would certainly not be particularly "important to decide on the disposition of [the] embryos . . . in these situations," as the Declarations of Intent would be rendered utterly meaningless (id. at 1).
Additionally, the language the plaintiff contends authorizes him to unilaterally withdraw his consent from the Declarations ("I understand that participation is purely voluntary and that my refusal to participate or withdraw from the program at any time will not involve any penalty or loss of benefit to which I am otherwise entitled") is copied nearly verbatim from 45 CFR 46.116, which, inter alia, outlines the basic requirements in seeking and obtaining informed consent from human research subjects and broad consent for the storage and use of identifiable biospecimens (see 45 CFR 46.116 [a]-[d]). Under 45 CFR 46.116, one of the basic elements of seeking informed consent from a human research subject is providing the subject "[a] statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled" (45 CFR 46.116 [b] [8]). As CCRM is responsible for the storage of the parties' embryos, CCRM must provide this specific disclosure in the instant case under 45 CFR 46.116 [d] [1] to satisfy one of the "[e]lements of broad consent for the storage, maintenance, and secondary research use of . . . identifiable biospecimens" (45 CFR 46.116 [d]).
Here, a clear reading of the Declarations of Intent in their entirety demonstrates that numerous provisions therein exist solely to benefit CCRM and limit CCRM's liability given the processes and risks associated with the storage and cryopreservation of embryos. The Declarations' inclusion of 45 CFR 46.116 [b] [8]'s language is clearly intended by CCRM not only to provide patients with the legally required disclosures under 45 CFR 46.116 [d] [1] to properly obtain the parties' broad consent for the storage, maintenance, and potential research use of the parties' embryos, but also to limit CCRM's liability in the event of a legal dispute (see Kass, 91 NY2d at 586; K.G., 72 Misc 3d at 597). Reading this clause as a general authorization for E.L. to unilaterally withdraw his consent and void the Declarations of Intent betrays the spirit and purpose of the Declarations, as well as the plain language stressing the implications and significance of the choices mutually selected by the parties (see NYSCEF Doc No. 19, Declarations of Intent at 1). The plaintiff's interpretation of the Declarations of Intent must be rejected, as it fails to honor the mutually consented to disposition of the parties' cryopreserved embryos and would effectively invalidate all provisions therein.
ANALYSIS
As Kass, Finkelstein, K.G., A.Z., J.B., and Davis collectively demonstrate, a properly executed embryo disposition agreement specifically addressing dispositional authority of any cryopreserved embryos in the event of the couple's divorce or separation "should generally be presumed valid and binding, and enforced in any dispute between them," but if the agreement is silent on the dispositional authority of the embryos in the event of a divorce or separation, a court may find that it is improper or contrary to public policy to award the embryos to either party for any purpose absent contemporaneous mutual consent as to disposition (Kass, 91 NY2d at 565; see Finkelstein, 162 AD3d at 403; K.G., 72 Misc 3d at 602-603; A.Z., 431 Mass at 158; J.B., 170 NJ at 21; Davis, 842 SW2d at 597).
Here, E.L. and A.S. entered an advance agreement as to the disposition of their cryopreserved embryos in the event of their divorce or separation. As evidenced by the plain text of the Declarations and the elections made therein, the parties specifically foresaw the possibility of their divorce or separation and mutually consented to specific course of action regarding the disposition of their cryopreserved embryos in such circumstances (see NYSCEF Doc No. 19, Declarations of Intent at 2-3). As the New York Court of Appeals affirmed in Kass, where a contract makes the parties' overall intention clear, "courts examining isolated provisions `should then choose that construction which will carry out the plain purpose and object of the [agreement]'" (Kass, 91 NY2d at 567, citing Williams Press v. State of New York, 37 NY2d 434, 440 [1975], quoting Empire Props. Corp. v. Mfrs. Trust Co., 288 NY 242, 249 [1942]; see K.G., 72 Misc 3d at 602).
As discussed above, the agreement in Finkelstein is critically distinguishable from the Declarations of Intent in the instant case, as the couple in Finkelstein did not consent to a specific grant of dispositional authority of their cryopreserved embryos in the event of their separation or divorce. Accepting the plaintiff's arguments that the parties' Declarations are unenforceable or, alternatively, that he may unilaterally withdraw his consent, would necessarily require this Court to disregard the plain text and legislative intent of Family Court Act § 581-306, as well as the controlling precedent regarding embryo disposition agreement disputes established by the New York Court of Appeals in Kass. This Court is bound by Kass and the prospective nature of Family Court Act § 581-306, and the plaintiff's arguments, which necessitate the contravention of the same, must be rejected.
Furthermore, permitting the plaintiff to unilaterally withdraw his consent from his choices in the Declarations of Intent would seriously undermine the Declarations' purpose to "minimize misunderstandings and maximize procreative liberty . . . [and] provide the certainty needed for effective operation of IVF programs" (Kass, 91 NY2d at 565). Enforcing the parties' Declarations of Intent "underscores the seriousness and integrity of the consent process," as the Declarations "would have little purpose if they were enforceable only in the event the parties continued to agree" (id. at 566). If this Court adopts the plaintiff's position arguendo that "he alone may elect to discard the embryos, the provisions regarding the dispositional choices elected . . . would be rendered meaningless," and impermissibly "leave other provisions without force and effect" (K.G., 72 Misc 3d at 602, citing Corhill Corp., 9 NY2d at 599).
CONCLUSION
Examining the intentions of E.L. and A.S. as manifested in their respective Declarations of Intent, and affording the language therein a fair, sensible, practical, and reasonable interpretation, E.L. and A.S. unequivocally consented under the current circumstances for this Court to issue a decree to be presented to CCRM "directing use to achieve a pregnancy in [A.S.]" (NYSCEF Doc No. 19, Declarations of Intent at 3). This Court will honor the parties' unambiguous expressions of choice as manifested in their duly executed Declarations of Intent.
For the foregoing reasons, it is hereby
ORDERED that the defendant's motion for an order awarding her the parties' cryopreserved embryos for implantation in accordance with the parties' Declarations of Intent is granted in its entirety; and it is further
ORDERED that the plaintiff's cross-motion directing CCRM to destroy any and all embryos currently being held by CCRM is denied.
The above constitutes the Decision and Order of the Court.
[1] The parties executed identical versions of their respective Declarations of Intent on multiple occasions prior to those executed with New York Medical Sciences, P.C. on September 12, 2020. See NYSCEF Doc No. 28, plaintiff's exhibit 1 (executed with Boston Reproductive Medicine Physician Group, PLLC, on January 14, 2020).
[2] The current version of Family Court Act § 581-306 came into effect on December 21, 2024. The 2024 revision modifies subdivisions [a] [3] and [d], whereas subdivision [a] [2], the sole subdivision relied upon by the plaintiff, is identical to its 2021 iteration.
[3] The courts in the various cases cited by the parties employ the terms "embryos," "preembryos," "pre-embryos," or "pre-zygotes" when referring to frozen, fertilized eggs that have not been implanted in the uterus. In this Court's discussion of each case, the phrasing utilized by each court is preserved.
[4] Embryo disposition agreements may be unenforceable as violative of public policy or as a result of significantly changed circumstances. Kass, 91 NY2d at 565 n 4. In the instant case, the plaintiff does not make either argument, and the record does not reflect that the Declarations of Intent are violative of public policy or that a significant change in circumstances has occurred.
[5] The interests of the parties discussed by the J.B. Court were the ex-wife's right not to become a parent and the ex-husband's right to procreate. The J.B. Court noted that the ex-husband's "right to procreate is not lost if he is denied an opportunity to use or donate the preembryos. . . . In contrast [the ex-wife]'s right not to procreate may be lost through attempted use or through donation of the preembryos." J.B., 170 NJ at 25. The J.B. Court specifically "express[ed] no opinion in respect of a case in which a party who has become infertile seeks use of stored preembryos against the wishes of his or her partner," which, based on the record in the instant case, may very well be A.S.'s situation. Id. at 30.
[6] Regarding the option of donating the cryopreserved embryos to another couple for reproductive purposes, the Declarations of Intent state: "Embryo donation to achieve a pregnancy is regulated by the FDA, as well as state laws, as donated tissue. Certain screening and testing of the persons providing the sperm and eggs are required before donation can occur and, as a result of the outcome of these tests, this may not be an option for me/us." NYSCEF Doc No. 19, Declarations of Intent at 1. As neither party argues that the embryos should be donated to another couple under Section IV of the Declarations of Intent instead of awarding them to A.S. to achieve a pregnancy, it is unknown to the Court whether the embryos have undergone or passed the requisite testing, or whether CCRM currently facilitates anonymous embryo donation."
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