KASS FROZEN EMBRYO DECISION AFFIRMED ON APPEAL

        A second appeal of the Kass decision has reaffirmed the intermediate appellate court's ruling regarding a divorced couple's frozen embryos (Legally Speaking, summer '95 and winter '97). Maureen Kass had won an early victory from a trial court, which ruled that she should have exclusive control of the embryos, just as if they were being carried by her. That ruling was overturned by the initial appellate court which ruled that the couple's prior intent, as expressed in their cryopreservation agreement, should govern. Despite some ambiguities, the intermediate court ruled that the couple's clearly expressed intent was to donate the embryos for research. A majority of that court agreed that a woman's right to privacy and bodily integrity was not implicated before implantation, and that a clearly expressed prior agreement as to disposition between a couple undergoing IVF should govern. The state's highest court has now affirmed.

        Finding that the parties' agreement governed as to dispositional authority over the remaining embryos, the high court acknowledged that it was able to skirt difficult issues such as whether embryos were entitled to "special respect" by the program. Employing a contract analysis, the court ruled the agreement was not so ambiguous that the couple's intentions were not clear. The court recognized that while the value of such agreements was apparent, so was the "extraordinary difficulty" in reaching such an agreement, especially in light of future uncertainties, which the court noted included death, divorce, incapacity, aging, and birth of other children. The court went on to note that it was these very uncertain future factors which make it "particularly important that courts seek to honor the parties' expressions of choice made before disputes erupt, knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process; advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree." The court was not concerned by the fact that the agreement was drafted by the IVF program, as neither party disputed that the agreement was an expression of their intent or that their choices were not freely and knowingly made.

        The court also noted that, "explicit agreements avoid costly litigation in business transactions; they are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs." (Kass vs. Kass,-N. Y. Rpts.- (Ct.Apps.) (No. 53, 5/ 7/98).