Steve and Maureen Kass married in 1988 but were unable to conceive the child they wanted. Turning to a Long Island fertility clinic, they tried artificial insemination, then in vitro fertilization and finally surrogacy. Five years and $75,000 later, they remained childless and their marriage dissolved.
Despite the divorce, Maureen Kass wanted to continue trying to achieve a pregnancy using five remaining embryos conceived from her eggs and her ex-husband’s sperm, although he was adamantly opposed.
On Thursday, New York’s highest court sided with Steve Kass, saying the couple were bound by an informed-consent agreement to donate the embryos to science.
The ruling could affect thousands of couples across the country who seek to have children through high-tech procedures.
Informed-consent agreements stating what the couple wants to do with their embryos in the event of death, divorce or other changed circumstances are used in nearly every fertility program, but the enforceability of the agreements has never been tested until now.
Tens of thousands of children have been born in the U.S. through in vitro fertilization. The science and technology of assisted reproduction have advanced faster than the law in that area, so there is little precedent to guide judges faced with the handful of disputes that have arisen over the disposition of embryos.
Experts say more cases can be anticipated: An estimated 100,000 embryos are in frozen storage, and some 20,000 of them are in legal limbo.
In its unanimous opinion Thursday, the New York State Court of Appeals did not address the question of the legal status of the embryos, known as prezygotes, except to reaffirm that the law does not recognize them as “persons” for constitutional purposes. The court limited its inquiry to the question of who has “dispositional authority” over the prezygotes, and said the answer lay in the parties’ agreement.
The court said the Kasses had made their intentions clear in the informed-consent agreement they signed before trying to have a child through in vitro fertilization, and they were bound by that agreement. The form said that, in the event of “unforeseen circumstances,” any embryos remaining in frozen storage would be donated to the fertility program at Mather Memorial Hospital in Port Jefferson, N.Y., for research and ultimately disposed of.
But Maureen Kass, who is now 40, later changed her mind and sued for custody of the embryos, which she called her last, best chance of having a baby.
At the time of their divorce in 1994, the Kasses still had five prezygotes in the clinic’s freezer. Claiming that the consent agreement was ambiguous as to what should happen to them in case of divorce, Maureen Kass asked the court to award them to her.
Steve Kass argued that the agreement was clear and his right not to be a parent against his will trumped Maureen’s right to have a child using those particular embryos.
The trial court ruled in her favor, but the appellate division reversed that decision and the state’s highest court on Thursday affirmed the appeals court ruling.
Vincent Stempel, Maureen Kass’ lawyer, said he was seeking a stay to prevent the prezygotes from being thawed pending a decision on whether to appeal to the U.S. Supreme Court.
“With all due respect to the court,” he said Thursday, “we missed a great opportunity to provide needed guidance on these intrinsically difficult questions that are going to recur.
The court did not address the essential question of what pre-embryos are.
“Mrs. Kass is devastated,” he said. “She believed they were alive, and she wanted to give them life.”
Most hospitals with in vitro fertilization programs use forms similar to the one at issue in the Kass case.
Dr. Ralph Kazer, head of reproductive endocrinology and infertility at Northwestern University Medical School, said, “Our consent form for cryopreservation is the most elaborate and lengthy consent form we have, and we spend a lot of time going over it with our patients.”
No disputes have arisen in Northwestern’s program, which has treated more than 1,000 couples. Experts in reproductive law said they were not aware of any disputes in Illinois.
Although Thursday’s decision is not binding outside New York state, courts elsewhere would look to it for guidance.
Approximately 45,000 couples a year undergo in vitro fertilization treatment, yielding more than 9,000 live births.
