Family Law Keyed to Weisbergback
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.
Facts. Husband A.Z. and wife B.Z. were married in 1977. The couple experienced fertility problems, and turned to in vitro fertilization (IVF) sing wife’s ova and husband’s sperm. The wife conceived and gave birth to twin daughters in 1992. More preembryos were formed than necessary, and two vials of preembryos were frozen for possible future implantation. Prior to the separation of the couple, the wife had one of the remaining vials of preembryos thawed and implanted. No pregnancy resulted. Ultimately they divorced, and one vial containing 4 frozen embryos remained in storage. During the procedure, the clinic required egg and sperm donors to sign consent forms for relevant procedures. Each consent form explained the general nature of the procedure and outlined the freezing process. The forms also require the donor to decide the disposition of the frozen preembryos on certain listed contingencies, including separation. On the initial form filled out by the wife, the decision
was to return the embryos to the wife for implant if the couple became separated. Thereafter the couple underwent 6 additional egg retrievals and signed 6 additional consent forms. Each time the husband signed the form, the wife filled out the disposition and other information. Each provide for the embryos to be returned to her on separation. The probate judge concluded that while donors are generally free to agree as to the ultimate disposition of the embryos, the agreement was unenforceable due to a change in circumstances in the 4 years following the last signature, including the birth of the twins, the filing for divorce, and the wife’s seeking to thaw the preembryos for implantation. The judge found that the best solution was to balance the wife’s interest in procreation against the husband’s interest in avoiding procreation, and determined that the husband’s interest outweighed the wife’s and the permanent injunction should be granted in favor of the husband.
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.