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Kass v. Kass

Citation. 91 N.Y.2d 554 (N.Y. Ct. App. 1998).
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Brief Fact Summary.

Maureen Kass (Plaintiff) and Steven Kass (Defendant) were married and, in an effort to have children, attempted in vitro fertilization (IVF) procedures. The procedures resulted in five frozen preembryos. The couple signed an agreement that if they could not agree to the disposition of the preembryos, the preembryos would be donated to the IVF program for research. Shortly after signing this agreement, Plaintiff filed for divorce and sued for custody of the preembryos so that she could have them implanted. Defendant objected and moved for specific performance of their agreement.

Synopsis of Rule of Law.

An agreement between the two biological donors regarding disposition of their preembryo is presumed valid and binding and should be enforced in the case of a dispute.


While Plaintiff and Defendant were married, they attempted to conceive children through in vitro fertilization over the course of five years. The procedures failed and at the end of five years, the couple was left with five frozen preembryos. Plaintiff and Defendant signed a consent agreement stating that if the two could not agree on the disposition of the preembryos, the preembryos would be donated to the IVF program for research. Three weeks later, in anticipation of a divorce, Plaintiff and Defendant signed an additional agreement stating that the preembryos would be disposed of as described in the consent agreement and that neither of them would seek custody of the preembryos. Three weeks after this agreement was signed, Plaintiff notified the IVF program that she no longer consented to the destruction or release of the frozen pre-embryos. A month after this notification Plaintiff filed for divorce, seeking custody of the pre-embryos for the purpose of undergoing another implantation procedure. Defendant objected to implantation and sought specific performance of the consent agreement. The state intermediate appellate court ordered enforcement of the consent agreement and Plaintiff appealed. (The remainder of the procedural history does not appear in the casebook.)


Is an agreement between the two biological donors of a preembryo valid, binding, and enforceable in determining the disposition of the preembryos in a dispute?


(Kaye, C.J.) Yes. An agreement between the two biological donors regarding disposition of their preembryo is presumed valid and binding and should be enforced in the case of a dispute. The state has not enacted any statutes that direct the outcome of such cases. Nor have many other courts had to rule on this issue. One jurisdiction determined that courts should balance the competing interests of the two parties unless there is a written agreement between the parties. When such an agreement exists, it should be presumed valid and implemented. A case regarding the disposition of preembryos does not involve a woman’s right to privacy or bodily integrity and preembryos are not “persons” for constitutional purposes. Therefore, the case is resolved by determining who has dispositional authority over the preembryos. The agreement signed by Plaintiff and Defendant answers that question. Agreements of this type should be presumed valid, binding, and enforceable and should be encouraged in order to avoid costly litigation and provide certainty to all parties and the IVF providers. Given that the ability to freeze pre-embryos allows time for circumstances to change between the parties, it is important that the courts honor agreements indicating decisions made before the disputes arose. Agreements would little value if they were only enforceable while all parties continued to agree. To the extent possible, it should be the biological parties involved, not the state or courts, who make the choices as to disposition. The consent agreement signed by Plaintiff and Defendant illustrates their choice to have the preembryos donated for research if they could not otherwise agree on disposition. The law will give effect to that choice. Affirmed.


The subject matter of the agreement at issue in this case was novel, but the court applied common law contract principles in reaching its holding. One of the contract principles applied was the idea that in order to determine whether a contract is ambiguous, the court looks only within the four corners of the document and not to other sources. The court examined the consent agreement and determined that it was not ambiguous and that the parties’ intent was clear from the document. If the court had determined that the consent agreement was ambiguous, it could have then looked to the agreement signed just three weeks later in order to resolve any ambiguity as to the parties’ intentions. An external source cannot be used in determining whether the document at question is itself ambiguous, but can be used to resolve any ambiguities that are found in the document itself. In this case, the second agreement would have reaffirmed the intention of the two parties that neither one could make a claim to the preembryos.

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