Judges: Friedmann, Miller, Sullivan
Filed Date: 9/8/1997
Status: Precedential
Modified Date: 11/1/2024
I concur with the result reached by my plurality colleagues, namely that, without benefit of a hearing, the disposition of the frozen pre-zygotes at issue here should be in accordance with "Addendum No. 2-1” of the parties’ informed consent document. However, I write separately because I do not agree that the informed consent document is sufficiently unambiguous to determine the disposition of the pre-zygotes based solely on the terms of that agreement.
I
Initially, I agree with the plurality that procreational decisions are "intensely personal” and should, where possible, be resolved by the implementation of the parties’ intentions. However, I do not believe that the informed consent document relied on here provides real insight into the intentions of these divorced parties.
The plurality urges that the parties had resolved to donate their frozen pre-zygotes to research in any instance where they ceased to agree on the disposition of the fertilized eggs, including during a divorce. In reaching this conclusion, they principally rely upon Addendum No. 2-1 of the parties’ informed consent contract with the IVF laboratory (hereinafter the IVF contract) which they initialed, and which provides: "[i]n 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 * * * [o]ur 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”.
However, to the extent that the instant IVF contract has an intelligible structure, it appears to be chronological, i.e., it fol
My plurality colleagues conjecture that the provision in the IVF contract to donate any "excess” pre-zygotes to research is the provision referred to in the parties’ preliminary "Uncontested Divorce” agreement of June 7, 1993, in which the couple declared that "the frozen 5 pre-zygotes at Mather Hospital * * * should be disposed of [in] the manner outlined in our consent form”. However, it is by no means clear that the parties agreed on the "manner” of disposition. In addition, the June 7, 1993 agreement was superseded on December 17, 1993, by a new "Stipulation Pursuant to Divorce”, wherein the parties reserved their rights to pursue the "ongoing litigation with respect to the custody of eggs”.
This "ongoing litigation” seems to be sanctioned by the sole paragraph in the IVF contract to expressly address what should happen in the event of divorce, namely: "In the event of divorce, we understand that legal ownership of any stored prezygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction”. This sentence, which is admittedly not free from ambiguity, suggests that in the event of divorce the parties hoped to arrive at a "settlement” agreement with respect to the stored pre-zygotes, but that, failing such an agreement, they committed the ultimate decision regarding disposition of their frozen fertilized eggs to the court.
II
I cannot accept the strict balancing of interests approach favored by the Davis court and my dissenting colleagues. Rather, I am persuaded that where, as here, there is no reliable contract providing for the disposition of the frozen prezygotes, the objecting party, except in the most exceptional circumstances, should be able to veto a former spouse’s proposed implantation.
The Davis court, which favored a balancing of the parties’ interests in the absence of a contract governing the disposition of frozen pre-zygotes in the event of divorce, clearly inclined to the opinion that "[o]rdinarily, the party wishing to avoid procreation should prevail” (Davis v Davis, supra, at 604).
However, the Davis court deserted its own balancing of interests test when it suggested that the wife’s position would be strengthened where, as here, she desires to have the prezygotes implanted in her own body rather than in someone else’s (Davis v Davis, supra, at 604; see, e.g., Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va L Rev 437, 479-483 [1990] [hereinafter Robertson, In the Beginning]). I believe that the Davis dicta, if implemented, would collide with the Supreme Court’s holding in Planned Parenthood v Danforth (428 US 52), that no person or entity should be allowed to interfere with another person’s decision not to have offspring before the point of viability (see also, Robertson, In the Beginning, op. cit., at 468).
III
In my view, an objecting party’s right to veto implantation is supported, in the first instance, by fundamental constitutional considerations. As the Davis court reasoned, the right of "procreational autonomy” (Davis v Davis, supra, at 601), implicit in the constitutional guarantees of liberty and privacy includes both "the right to procreate and the right to avoid procre
Once lost, the right not to procreate can never be regained. It is the irrevocability of parenthood that is most crushing to the unconsenting gamete provider; and it is principally because of this that I find it hard to imagine a situation where a court should undertake to foist parenthood upon an unwilling individual (see, e.g., Matter of Baby Boy C., 84 NY2d 91). "Once a child is born, there is no way to end biological ties, and very few ways to end emotional ones” (Note, Davis v Davis: An Inconsistent Exception to an Otherwise Sound Rule Advancing Procreational Freedom and Reproductive Technology, 43 DePaul L Rev 523, 566 [1994]). Put somewhat differently, "[e]ven if no rearing duties or even contact result[s], the unconsenting partner [former spouse] will know that biologic offspring exist, with the powerful attendant reverberations of guilt, attachment, or responsibility which that knowledge can ignite” (Robertson, In the Beginning, op. cit., at 479).
IV
Practical and policy concerns also militate against pre-zygote implantation under circumstances where the marital relationship has dissolved and one gamete provider objects. For example, New York State imposes an unwaivable duty upon most biological parents to support their offspring, regardless of how they were conceived (see, e.g., Matter of L. Pamela P. v Frank S., 59 NY2d 1). Even assuming that the wife at bar intends in good faith to bear all of the expenses of child-rearing on her own, unforeseen circumstances can always arise capable of causing the child’s needs to exceed the mother’s re
V
Although I do not disagree with my dissenting colleagues that the IVF agreement is ambiguous, I do not consider that a dispositional hearing as suggested by them is warranted. It is my belief that the party seeking to implant the pre-zygotes— here the former wife—should be required to establish as a threshold matter that she cannot undergo IVF with a new partner or a sperm donor because, for example, she has lost her ability to ovulate or has some other major medical contraindication to egg retrieval (see, e.g., Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St L J 407, 413, 419 [1990]; see also, Robertson, In the Beginning, 76 Va L Rev, op. cit., at 479). Mere discomfort, expense, or other potentially surmountable difficulties should not suffice to defeat the defendant’s fundamental right to avoid biological fatherhood in a case of this sort. In addition, adoption should be regarded as among the "other reasonable alternatives” to prezygote implantation. The wife’s mere preference for genetic parenthood should not override her former spouse’s prerogative to elect not to procreate in circumstances such as these (Note, Procreative Rights, 27 Conn L Rev, op. cit., at 1403-1404). Only following a prima facie showing by the plaintiff that she lacks all other means of achieving genetic parenthood and that adoption is not a feasible or satisfactory option for her should the hearing recommended by the dissent be held.
However, in the matter before us, as justification for the former wife’s wish to implant the frozen pre-zygotes, she has contended only that she has a medical condition that makes it difficult for her to conceive and carry a child to term, and that as an unmarried person in her late thirties she would not find it easy to recommence the IVF process. She has not alleged that further IVF efforts with another donor would be unavailing, and she has not addressed the adoption issue at all. In my
VI
In summary, although I do not believe that the parties’ informed consent agreement provides the guidance to their intentions that the plurality perceives, I concur that judgment should be granted to the defendant. Moreover, because the defendant has throughout the course of this litigation expressed his desire that the contested pre-zygotes be used by the IVF program in approved research studies, I join with my plurality colleagues in sanctioning this disposition.