Winter 2015 Newsletter: Frozen Gametes & Family Law

By Rona Yang

Approximately 10% of women in the United States between ages 15 and 44 are unable to conceive or bear children. Same-sex couples require non-coital forms of conception to create children. Given the difficulties of adoption, prospective parents who cannot reproduce through sexual means turn to assisted reproductive technology. In its rapid evolution over the past two decades, assisted reproductive technology has become a fertile market for acquiring children, literally and metaphorically. For family law attorneys, this means dealing with the increasing prevalence of frozen gametes in divorces.

Most contracts governing the donation of gametes will stipulate to the disposition of cryopreserved embryos upon separation or divorce. But, what if the parties disagree about the contract provisions after separation or divorce? Intuitively, a family law practitioner would look at the terms of the contract. However, as the case of Baby M has enlightened all first year law students, contracts are not ironclad; contracts can be invalidated for public policy reasons.  Are contract provisions governing the disposition of unused cryopreserved embryos enforceable against someone who is unwilling to implant that frozen embryo?

The division of frozen embryos in divorce proceedings has had a short and uncertain history. In 1992, the Tennessee courts first seriously analyzed the role of “cryogenically-preserved product of in vitro fertilization (IVF), commonly referred to in the popular press and the legal journals as "frozen embryos."’ in a divorce proceeding.   In Davis v. Davis, the Tennessee Supreme Court concluded that “the husband’s interest in avoiding parenthood was more significant than the wife’s interest in donating the embryos to another couple for implantation.”  However, the couple in Davis did not have a written or oral agreement as to the disposition of the embryos involved.

In Kass v. Kass, the Court of Appeals of New York upheld an agreement that provided for the release of frozen embryos to medical research in case of divorce.  It is important to note in Kass that the party appealing for the right to implant the frozen embryos had no other route to genetic motherhood.  The court ruled that “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.”  The New York court did not have to decide whether it would uphold an agreement that resulted in forced parentage upon one party.

The Supreme Judicial Court of Massachusetts has invalidated contract provisions that would result in forced procreation.  In the first reported case involving an agreement that would award the embryos to one party upon separation or divorce, the SJC found that public policy trumped contracts that would “compel one donor to become a parent against his or her will.”  The court cited legislation that prohibited individuals from being bound by agreements that would force them to enter or not enter into familial relationships, as well as cases that struck down agreements binding individuals to future family relationships.

What does this all mean from a practical perspective? First, this means that in Massachusetts, your client will not be able to implant an embryo against his or her former partner’s wishes, regardless of any contracts that the parties may have previously signed. Second, there are important questions to ask a prospective client during the initial consultation. Do they have a contract for the cryopreserved embryos? Is the contract clear and specific regarding disposition of the embryos? Is there any language in the contract that makes it invalid in the event of separation or divorce? What was the intention of both parties in entering that contract? Did your client use his or her own biology for the cryopreserved embryo? If there was a third party sperm or egg donor, was it known or anonymous? In what jurisdiction does the sperm or egg donor reside? Where is the IVF clinic located and what jurisdiction applies? What are the chances your client is able to have a child without the embryos? Although Massachusetts courts have established the general rule that public policy trumps contracts that would force an individual to become a parent against his or her will, it is still possible for parties to negotiate and stipulate to the disposition of embryos in a divorce agreement. Unfortunately, enforceability of such stipulations is still uncharted territory in Massachusetts. When you do encounter cryopreserved embryos in a divorce proceeding, approach with caution and research with diligence.

                                                                                                                                            

  1. Infertility Fact Sheet, Womenshealth.gov, (July 1, 2009) http://womenshealth.gov/publications/our-publications/fact-sheet/infertility.cfm.
  2. In Re Baby M, 109 N.J. 396 (N.J. 1988)
  3. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)
  4. Id.
  5. Id.
  6. Kass v. Kass, 91 N.Y.2d 554 (1998)
  7. Id.
  8. Id.
  9. AZ v. BZ, 431 Mass. 150,160 (2000)
  10. Id.
  11. Id.

 

  Rona Yang is an attorney at Circle Surrogacy, a full-service surrogacy agency in Boston, MA.  She represents intended parents in drafting and negotiating contracts for surrogacy and egg donation agreements. Prior to joining Circle, she worked in other Boston area family law firms. She received her J.D. from Suffolk University Law School, and her B.A. from University of Rochester.