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Interesting Case Regarding Invitro Fertilization

 

The instant case presents this court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent “uncontested divorce” instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermore, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.
The plaintiff and the defendant were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a “General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: “INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES”, comprising pages one to five of the document, and “INFORMED CONSENT FORM NO. 2–ADDENDUM NO. 2-1: CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a “General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: “INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES”, comprising pages one to five of the document, and “INFORMED CONSENT FORM NO. 2–ADDENDUM NO. 2-1: CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a “General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: “INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES”, comprising pages one to five of the document, and “INFORMED CONSENT FORM NO. 2–ADDENDUM NO. 2-1: CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

“The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes. THESE IMPORTANT DECISIONS MUST BE DISCUSSED WITH OUR IVF PHYSICIAN AND OUR WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO. 2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH THE IVF PROGRAM” (emphasis supplied).

In the second section of the informed consent document, the parties expressly stated their intent as to the cryopreservation and disposition of the pre-zygotes as follows: “We understand that it is IVF Program Policy to obtain our informed consent to the number of pre-zygotes which are to be cryopreserved and to the disposition of excess cryopreserved pre-zygotes. We are to indicate our choices by signing our initials where noted below. “1. We consent to cryopreservation of all pre-zygotes which are not transferred during this IVF cycle for possible use in (sic) by us in a future IVF cycle. “2. In the event that we no longer wish to initiate a pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to: “(b) Our frozen pre-zygotes may 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” (emphasis supplied).

Numerous ova were removed from the plaintiff. Two days later, four fertilized ova were implanted in the plaintiff’s sister, who had agreed to act as a surrogate. The five remaining pre-zygotes were cryopreserved by the IVF program pursuant to the parties’ express wishes as set forth in “ADDENDUM NO. 2-1” of the informed consent document, set forth aboven June 4, 1993, the parties were advised that a surrogate pregnancy had not resulted from the May 20th procedure, and the plaintiff’s sister changed her mind and refused to continue her participation. Their hopes dashed, the parties agreed almost immediately thereafter to dissolve their marriage. Hence, on June 7, 1993, the parties executed a document typed by the plaintiff which provided for an uncontested divorce. Significantly, that instrument set forth their understanding of what they previously had agreed to in the informed consent document with regard to the disposition of the remaining cryopreserved pre-zygotes.

On June 4, 1993, the parties were advised that a surrogate pregnancy had not resulted from the May 20th procedure, and the plaintiff’s sister changed her mind and refused to continue her participation. Their hopes dashed, the parties agreed almost immediately thereafter to dissolve their marriage. Hence, on June 7, 1993, the parties executed a document typed by the plaintiff which provided for an uncontested divorce. Significantly, that instrument set forth their understanding of what they previously had agreed to in the informed consent document with regard to the disposition of the remaining cryopreserved pre-zygotes.

Notwithstanding the foregoing, the plaintiff changed her mind and, on June 28, 1993, wrote letters to both the hospital and to her IVF physician advising them of the parties’ marital difficulties and stating her adamant opposition to the destruction or release of the five pre-zygotes. The plaintiff then commenced this matrimonial action by summons and verified complaint filed July 21, 1993. Among the various items of relief sought therein was the plaintiff’s request that she be awarded “sole custody of the frozen fertilized eggs now being held at Mather Memorial Hospital”. The plaintiff indicated that she wanted possession of the pre-zygotes so that, rather than having them implanted in her sister as on the previous occasion, the plaintiff herself could undergo yet another IVF implantation procedure. In his verified answer, the defendant opposed both the removal of the pre-zygotes from cryopreservation and any further attempt to achieve a pregnancy, and counterclaimed for specific performance of the parties’ election to permit the IVF program to retain the pre-zygotes for study and research, as provided in “ADDENDUM NO. 2-1” of the informed consent document.

By stipulation executed December 17, 1993, the parties resolved all financial and property issues in the matrimonial action, but reserved their rights with respect to the custody and possession of the pre-zygotes. By further stipulation dated April 25, 1994, the parties agreed, inter alia, to submit their respective arguments regarding custody or possession of the pre-zygotes to the court for determination. Additionally, on or about January 9, 1995, the parties agreed to rely solely on the papers submitted to the court.

In a memorandum decision dated January 18, 1995, the Supreme Court, Nassau County, ruled in favor of the plaintiff and awarded her possession of the five pre-zygotes. The court began by reasoning that while the pre-zygotes did not have the legal status of “persons”, they clearly enjoyed a status above that of mere property. The court went on to determine that a husband’s procreative rights in a situation involving in vitro fertilization were no greater than in the case of an in vivo fertilization, such that those rights essentially terminated at the moment of fertilization, making the disposition of the pre-zygotes a matter exclusively within the wife’s unfettered discretion. The court further determined that the informed consent document executed by the parties was not dispositive of the controversy and merely provided that in the event of divorce, a court was to decide the matter. The court also reasoned that the disposition chosen by the parties in “ADDENDUM NO. 2-1” of the informed consent document was not applicable in “a divorce situation”. Finally, the court determined that the parties’ “uncontested divorce” agreement of June 7, 1993, which never became operative, did not constitute a waiver by the plaintiff of “her right to determine the future of the subject zygotes”. By judgment entered February 23, 1995, the court, granted the plaintiff “the exclusive right to determine the fate of the subject pre-embryos”, including their utilization in another attempt to achieve pregnancy. This appeal by the defendant ensued. On May 26, 1995, the judgment was stayed pending the determination of this appeal. For the reasons which follow, we disagree with the Supreme Court’s resolution of the matter and instead find that the parties’ mutual intent regarding the disposition of the pre-zygotes, expressed in the informed consent document executed contemporaneously with the last IVF procedure and in the uncontested divorce instrument, should be given effect.

We begin our analysis with the observation that all of the members of this panel, including the concurring and the dissenting Justices, agree that the Supreme Court committed a fundamental error in equating a prospective mother’s decision whether to undergo implantation of pre-zygotes which are the product of her participation in an IVF procedure with a pregnant woman’s right to exercise exclusive control over the fate of her non-viable fetus. It is well settled that the latter authority is premised on the woman’s right to privacy in the area of reproductive choice.

Turning to the record before us, we find that such an unequivocal statement of intent exists in this case by reason of the parties’ execution of the aforementioned informed consent document. Indeed, reading that document as a whole, it is clear from the tenor of its language as well as from its liberal use of the words “we”, “us”, and “our” that the parties’ very participation in the IVF program is premised on their status as a married couple committed to a single joint decision to use IVF in an attempt to achieve parenthood. Indeed, in paragraph III–“Disposition of Pre-Zygotes”–of Informed Consent Form No. 2, it is expressly stated: “Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law” (emphasis supplied).

Moreover, at numerous points throughout the document, the parties, as a married couple, acknowledge their joint right and obligation to provide for the disposition of any stored pre-zygotes in the event that they cannot render such a joint decision at some point in the future. Significantly, the only specific dispositional language in the entire informed consent document appears at page six of that instrument, where the parties jointly state their intention to permit the IVF program to retain the pre-zygotes for approved research and investigation in the event that they are unable to make a decision regarding the disposition of the pre-zygotes. Since the parties now in fact no longer agree with regard to this matter, they are no longer able to render the single, joint decision regarding the disposition of the pre-zygotes which the informed consent document contemplated. Accordingly, their prior statement as to disposition, as set forth at page six of the informed consent document, should be given effect according to its clear and unambiguous terms. Given these circumstances, we agree with the defendant’s position that the pre-zygotes must be retained and used by the IVF Program for scientific purposes, a result consistent with the parties’ expressed wishes.

In view of the foregoing, and in keeping with the spirit and tenor of the entire document, we find that the provision cited by the plaintiff is rationally interpreted to mean that death and incapacity are merely examples of contingencies which will prevent a joint decision and will therefore render consideration of the parties’ expression of intent appropriate, but they are not the only events which will do so.

In conclusion, we find that the decision to attempt to have children through IVF procedures and the determination of the fate of cryopreserved pre-zygotes resulting therefrom are intensely personal and essentially private matters which are appropriately resolved by the prospective parents rather than the courts. Accordingly, where the parties have indicated their mutual intent regarding the disposition of the pre-zygotes in the event of the occurrence of a contingency, that decision must be scrupulously honored, and the courts must refrain from any interference with the parties’ expressed wishes. The documentary evidence overwhelmingly demonstrates that the parties in this case made such a clear and unequivocal choice, and the plaintiff’s subsequent change of heart cannot be permitted to unilaterally alter their mutual decision. Accordingly, the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment directing that the disposition of the five pre-zygotes shall be in accordance with paragraph 2(b) of Addendum No. 2-1 of the parties’ informed consent agreement.

Accordingly, the court held that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment directing that the disposition of the five pre-zygotes shall be in accordance with paragraph 2(b) of Addendum No. 2-1 of the parties’ informed consent agreement.
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