Brief Fact Summary. Husband and wife bore twins as a result of in vitro fertilization, and frozen preembryos remained. On divorce, wife attempted to enforce a consent form allowing her to retain custody of the preembryos upon separation of the couple.
Synopsis of Rule of Law. As a matter of public policy, the court will not enforce an agreement that forces an individual to become a parent if such individual later reconsiders his or her decision.
Issue. May the law compel an individual to become a parent over his or her contemporaneous objection?
Held. Prior agreements to enter into familial relationships should not be enforced against individuals who subsequently reconsider their decisions.
In other jurisdictions, two State courts of last resort have concluded that such agreements should ordinarily be enforced. This is the first reported case involving a consent form that provided that on the donors’ separation, the preembryos were to be given to one of the donors for implantation. This Court is dubious at best that it represents the intent of husband and wife, and concludes that the form should not be enforced in the circumstances of this case.
First, the form’s primary purpose was to explain to the donors the benefits and risks of freezing and to record their desires at the time the form is executed. It does not state that the consent form should act as a binding agreement should they later disagree. Second, the form does not contain a duration provision. Third, it uses the term separated, without defining separated. Separation and divorce have distinct legal meanings.
The donors’ conduct also creates a doubt as to their true intent. A clinic representative told the wife that she could cross out any of the language and fill in her own to fit her wishes. The consent form at issue here was signed in blank by the husband before the wife filled it in. Finally, the form is not a separation agreement that is binding on the couple in a divorce proceeding, and does not cover custody, support, or maintenance in the event the wife gives birth.
Even if the couple had entered into an unambiguous agreement this Court would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, forced procreation is not an area amenable to judicial enforcement. The Legislature has already determined by statute that individuals should not be bound by certain agreements binding them to enter or not enter into familial relationships.
Discussion. The Court initially points out that the agreement is not binding because it is questionable that it expressed the couple’s intent on divorce and does not provide terms that would cover birth after the divorce. The Court then holds that it would not enforce the agreement if it were unambiguous as a matter of public policy.