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."
