Kass v. Kass
91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998)
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Rule of Law:
Agreements between progenitors regarding the disposition of their cryopreserved pre-zygotes are presumed valid and binding and should be enforced according to their terms in any subsequent dispute.
Facts:
- Maureen Kass and Steven Kass, a married couple, were unable to conceive a child and enrolled in an in vitro fertilization (IVF) program.
- Before their final IVF cycle, on May 12, 1993, the couple signed consent forms provided by the hospital.
- The forms stipulated that if they could no longer wish to initiate a pregnancy or were 'unable to make a decision' regarding disposition, their frozen pre-zygotes would be donated to the IVF program for approved research.
- Both Maureen Kass and Steven Kass initialed the option for donation in such circumstances.
- Following the procedure, five pre-zygotes were cryopreserved, but an implantation attempt using a surrogate was unsuccessful.
- Shortly thereafter, the couple decided to divorce. Maureen Kass then sought custody of the pre-zygotes for implantation, while Steven Kass objected, insisting the agreement to donate them for research should be enforced.
Procedural Posture:
- Maureen Kass filed a matrimonial action in the New York Supreme Court (trial court), seeking sole custody of the pre-zygotes.
- Steven Kass counterclaimed, seeking specific performance of the agreement to donate the pre-zygotes for research.
- The Supreme Court granted custody of the pre-zygotes to Maureen Kass, reasoning that a female participant has exclusive decisional authority.
- Steven Kass, as appellant, appealed to the Appellate Division of the Supreme Court (intermediate appellate court).
- A divided Appellate Division reversed the trial court's decision, finding the parties' agreement controlled.
- Maureen Kass, as appellant, appealed to the Court of Appeals of New York (the state's highest court).
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Issue:
Does a clear and explicit prior agreement between the progenitors govern the disposition of their cryopreserved pre-zygotes in the event of their divorce and subsequent disagreement?
Opinions:
Majority - Chief Judge Kaye
Yes. A clear, explicit agreement between progenitors regarding the disposition of their pre-zygotes is controlling and should be enforced. Applying common-law contract principles, the court found the consent forms unequivocally manifested the parties' mutual intent for joint decision-making. The documents repeatedly use terms like 'we,' 'us,' and 'our,' emphasizing their shared responsibility. The specific clause directing donation for research in the event the parties are 'unable to make a decision' directly applies to their current deadlock following the divorce. The court rejected the argument that a separate clause mentioning court orders in a divorce created ambiguity, viewing it as a provision to insulate the hospital from liability rather than a surrender of the parties' dispositional authority to the courts. Therefore, the progenitors' previously expressed, joint intention must be honored.
Analysis:
This case establishes a strong preference in New York law for enforcing prior written agreements in disputes over cryopreserved pre-zygotes, treating the issue primarily as one of contract law. By doing so, the court avoids the complex ethical and legal questions regarding the legal status or personhood of pre-zygotes. This decision prioritizes the procreative autonomy of the gamete providers as expressed in their advance directives, providing certainty for IVF programs and participants. The ruling signals that courts will uphold these personal agreements, underscoring the importance for individuals to carefully consider and clearly document their intentions before beginning the IVF process.
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