In Cases of Embryo Custody, the Contract May Control

As fertility technologies become more common, the law is evolving to reflect same. Today, advances in science increasingly play a role in shaping families. Many couples choose to wait longer to have children and thus, may take proactive measures by utilizing reproductive technologies such as embryo cryopreservation. Cryopreservation of embryos essentially means that the embryo is frozen to preserve it for future use. While divorce may be the last thing on a couple’s mind when they are thinking about starting their family, complicated issues concerning the custody of the embryos can later arise if the relationship doesn’t work out. Two significant New York cases may guide courts in New York concerning the custody of embryos in the event of divorce. In both cases, the courts found that the contractual agreements signed by the parties were enforceable.

In the New York landmark case, Kass v. Kass (91 NY2d 554 [1998]), a married couple who decided to undergo in vitro fertilization, in the hopes of starting a family, had signed a consent form agreeing that their unused pre-zygotes (pre-embryos) could be used for research purposes. After several unsuccessful attempts at in vitro fertilization, the couple chose to divorce and the wife filed for custody of the cryopreserved pre-zygotes. The case made its way up to the New York Court of Appeals which held that the outcome of the custody dispute of the cryopreserved pre-zygotes should be determined by the contract provisions, as per the agreement signed by the parties. Accordingly, in this case, that meant that the remaining pre-zygotes were to be used for research purposes.

Twenty years later, in the 2018 New York case Finkelstein v. Finkelstein (2018 NY Slip Op 03926 [162 AD3d 401]), the Appellate Division First Department reversed the Manhattan Supreme Court’s decision which had found custody in the wife’s favor. In that case, the couple underwent several unsuccessful attempts at in vitro fertilization utilizing cryopreserved embryos. With one embryo remaining, the husband filed for divorce and for custody of the embryo. Although the lower court had found that the balance of equities favored the wife in that utilizing the cryopreserved embryo was her last chance to become a biological parent, the higher court held that the contract provisions controlled. In accordance with the “Consent Agreement” that was signed by the parties, either or both parties could withdraw their consent to participate in the fertility program “at any time” by providing written notice to the fertility center. As the husband had revoked his consent to use of his genetic materials in accordance with the Consent Agreement, the Appellate Division awarded him custody of the embryo solely for the purpose of disposal in accordance with the terms of the Consent Agreement.

If you are considering cryopreservation, it is best to consult with an attorney before you sign any documents as they could be legally binding and affect your future rights. If you are contemplating a divorce, and there may be a custody dispute as to a cryopreserved embryo, it is best to consult with a matrimonial attorney immediately who can advise you of your legal rights.

The Law Office of Jessica M. Semins handles matrimonial and family law matters. Call (646) 397-6844 for a consultation. Consultations are by appointment only and can be scheduled in Manhattan or Melville for the convenience of clients.

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Attorney Advertising.  The content contained herein is not intended to be construed as legal advice, nor form an attorney-client relationship. (c) 2019 The Law Office of Jessica M. Semins, Jessica M. Semins, Esq.