1L Law Source

Heading: Kass v. Kass, 1998 N.Y. Slip Opinion 04450, Court of Appeals of New York (1998), p 42.

Facts: - Appellant and respondent tried for years to conceive a child with no success.

In August 1989 they enrolled in an IVF program.
Pre-zygotes were taken and frozen in liquid nitrogen for later use.
Both parties signed consent forms dealing with how many eggs to take, what to do with the eggs in case of emergency.
It was determined in case of divorce the eggs were to go to the hospital for research purposes.
The parties divorced after unsuccessful attempts at INV, only 3 weeks after signing the agreement about what to do in case of divorce (1994).

Procedure: The NY Supreme Court granted custody of the pre-zygotes to appellant. Husband appealed and the Court of Appeals reversed.

Issue: Although both husband and wife signed agreements to give the pre-zygotes for research in the event of a divorce, should wife be allowed to break that promise and be given custody of the pre-zygotes, which she claim are her only hope for genetic motherhood?

Rule: Agreements between progenitors or gamete donors must be considered valid and binding and enforced in any dispute between them.

Holding: Because the parties clearly expressed their intent that in the circumstances presented the pre-zygotes would be donated to the IVF program for research purposes, they must be held to that agreement.

Rationale: There are numerous factors such as divorce, death and aging, that present an extraordinary difficulty in making explicit agreements about pre-zygotes. These factors make it particularly important that courts honor the parties expressions of choice, made before disputes erupt. Knowing in advance agreements will be enforced underscores the seriousness and the integrity of the consent process.

Policy/Notes: