431 Mass. 150 | Mass. | 2000
We transferred this case to this court on our own motion to consider for the first time the effect of a consent form between a married couple and an in vitro fertilization (IVF)
1. Factual background. We recite the relevant background facts as determined by the probate judge in his detailed findings of fact after a hearing concerning disposition of the preembryos at which both the husband and wife were separately represented by counsel. The probate judge’s findings are supplemented by the record where necessary.
a. History of the couple. The husband and wife were married in 1977. For the first two years of their marriage they resided in
In 1980, the husband and wife moved to Maryland where they underwent additional fertility treatment. The treatment lasted one year and did not result in a pregnancy. In 1988, the wife was transferred to Massachusetts and the husband remained in Maryland to continue his schooling. After arriving in Massachusetts, the wife began IVF treatments at an IVF clinic here. At first the husband traveled from Maryland to participate in the treatments. In 1991, he moved to Massachusetts.
Given their medical history, the husband and wife were eligible for two types of fertility procedures: Gamete Inter-Fallopian Transfer (GIFT) and IVF. IVF involves injecting the woman with fertility drugs in order to stimulate production of eggs which can be surgically retrieved or harvested. After the eggs are removed, they are combined in a petri dish with sperm produced by the man, on the same day as the egg removal, in an effort to fertilize the eggs. If fertilization between any of the eggs and sperm occurs, preembryos are formed that are held in a petri dish for one or two days until a decision can be made as to which preembryos will be used immediately and which will be frozen and stored by the clinic for later use. Preembryos that are to be utilized immediately are not frozen.
GIFT involves the removal of eggs from the woman that are then transferred simultaneously with the sperm into the fallopian tube where fertilization occurs before the embryo implants in the uterus. The husband and wife initially chose the GIFT procedure because it has a higher success rate than IVF. The GIFT procedure was performed on November 6, 1988. Another ectopic pregnancy resulted and the wife’s remaining fallopian tube was removed. Left with no alternatives, the husband and wife turned to the IVF procedure.
They underwent IVF treatment from 1988 through 1991. As a result of the 1991 treatment, the wife conceived and gave birth
In the spring of 1995, before the couple separated, the wife desired more children and had one of the remaining vials of preembryos thawed and one preembryo was implanted. She did so without informing her husband.
At the time of the divorce, one vial containing four frozen preembryos remained in storage at the clinic. Using one or more of these preembryos, it is possible that the wife could conceive; the likelihood of conception depends, inter alia, on the condition of the preembryos, which cannot be ascertained until the preembryos are thawed. The husband filed a motion to obtain a permanent injunction, prohibiting the wife from “using” the remaining vial of frozen preembryos.
b. The IVF clinic and the consent forms. In order to participate in fertility treatment, including GIFT and IVF, the clinic required egg and sperm donors (donors) to sign certain consent forms for the relevant procedures. Each time before removal of the eggs from the wife, the clinic required the husband and wife in this case to sign a preprinted consent form concerning ultimate disposition of the frozen preembryos. The wife signed a number of forms on which the husband’s signature was not required. The only forms that both the husband and the wife were required to sign were those entitled “Consent Form for Freezing (Cyropreservation) of Embryos” (consent form), one of which is the form at issue here.
Each consent form explains the general nature of the IVF
The probate judge noted that the clinic’s current GIFT and IVF handbook, which was in evidence, states that the consent forms were “good for one year.” There was no evidence whether this one-year limitation was in effect between 1988 and 1991. If a one-year limitation existed at that time, there was no evidence whether the husband and wife were aware of it. We do not attach significance to the provision in the handbook.
c. The execution of the forms. Every time before eggs were retrieved from the wife and combined with sperm from the husband, they each signed a consent form.
Each time after signing the first consent form in October,
2. The Probate Court’s decision. The probate judge concluded that, while donors are generally free to agree as to the ultimate disposition of frozen preembryos, the agreement at issue was unenforceable because of a “change in circumstances” occurring during the four years after the husband and wife signed the last, and governing, consent form in 1991:
3. Legal background. While IVF has been available for over two decades and has been the focus of much academic commentary,
Two State courts of last resort, the Supreme Court of Tennessee and the Court of Appeals of New York, have dealt with the enforceability of agreements between donors regarding the disposition of preembryos and have concluded that such agreements should ordinarily be enforced. The Supreme Court of Tennessee, in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). cert. denied sub nom. Stowe v. Davis, 507 U.S. 911 (1993), considered the issue in a dispute between a husband and his former wife after the two were divorced. The wife sought to donate the preembryos at issue to another couple for implantation.
The Court of Appeals of New York, in Kass v. Kass, supra, agreed with the Tennessee court’s view that courts should enforce agreements where potential parents provide for the disposition of frozen preembryos.
4. Legal analysis. This is the first reported case involving the disposition of frozen preembryos in which a consent form signed between the donors on the one hand and the clinic on the other
First, the consent form’s primary purpose is to explain to the donors the benefits and risks of freezing, and to record the donors’ desires for disposition of the frozen preembryos at the time the form is executed in order to provide the clinic with guidance if the donors (as a unit) no longer wish to use the frozen preembryos. The form does not state, and the record does not indicate, that the husband and wife intended the consent form to act as a binding agreement between them should they later disagree as to the disposition. Rather, it appears that it was intended only to define the donors’ relationship as a unit with the clinic.
Second, the consent form does not contain a duration provision.
Third, the form uses the term “[sjhould we become separated” in referring to the disposition of the frozen preembryos without defining “become separated.” Because this dispute arose in the context of a divorce, we cannot conclude that the consent form was intended to govern in these circumstances. Separation and divorce have distinct legal meanings.
The donors’ conduct in connection with the execution of the consent forms also creates doubt whether the consent form at issue here represents the clear intentions of both donors. The probate judge found that, prior to the signing of the first consent form, the wife called the IVF clinic to inquire about the section of the form regarding disposition “upon separation”: that section of the preprinted form that asked the donors to specify either “donated” or “destroyed” or “both.” A clinic representative told her that “she could cross out any of the language on the form and fill in her own [language] to fit her wishes.” Further, although the wife used language in each subsequent form similar to the language used in the first form that she and her husband signed together, the consent form at issue here was signed in blank by the husband, before the wife filled in the language indicating that she would use the preembryos for implantation on separation. We therefore cannot conclude that the consent form represents the true intention of the husband for the disposition of the preembryos.
Finally, the consent form is not a separation agreement that is binding on the couple in a divorce proceeding pursuant to G. L. c. 208, § 34. The consent form does not contain provisions for custody, support, and maintenance, in the event that the wife conceives and gives birth to a child. See G. L. c. 208, § 1A; C.P. Kindregan, Jr. & M.L. Inker, Family Law and Practice § 50.3 (2d ed. 1996). In summary, the consent form is legally insufficient in several important respects and does not approach the minimum level of completeness needed to denominate it as an enforceable contract in a dispute between the husband and the wife.
With this said, we conclude that, even had the husband and
The Legislature has already determined by statute that individuals should not be bound by certain agreements binding them to enter or not enter into familial relationships. In G. L. c. 207, § 47A, the Legislature abolished the cause of action for the breach of a promise to marry. In G. L. c. 210, § 2, the Legislature provided that no mother may agree to surrender her child “sooner than the fourth calendar day after the date of birth of the child to be adopted” regardless of any prior agreement.
Similarly, this court has expressed its hesitancy to become involved in intimate questions inherent in the marriage relationship. Doe v. Doe, 365 Mass. 556, 563 (1974). “Except in cases involving divorce or separation, our law has not in general undertaken to resolve the many delicate questions inherent in the marriage relationship. We would not order either a husband or a wife to do what is necessary to conceive a child or to prevent conception, any more than we would order either party to do what is necessary to make the other happy.” Id.
In our decisions, we have also indicated a reluctance to enforce prior agreements that bind individuals to future family relationships.
We derive from existing State laws and judicial precedent a public policy in this Commonwealth that individuals shall not be compelled to enter into intimate family relationships, and that the law shall not be used as a mechanism for forcing such relationships when they are not desired. This policy is grounded in the notion that respect for liberty and privacy requires that individuals be accorded the freedom to decide whether to enter into a family relationship. See Commonwealth v. Stowell, 389 Mass. 171, 173 (1983). “There are ‘personal rights of such delicate and intimate character that direct enforcement of them by any process of the court should never be attempted.’ ” Doe v. Doe, supra at 559, quoting Kenyon v. Chicopee, 320 Mass. 528, 534 (1946).
In this case, we are asked to decide whether the law of the Commonwealth may compel an individual to become a parent over his or her contemporaneous objection. The husband signed this consent form in 1991. Enforcing the form against him would require him to become a parent over his present objection to such an undertaking. We decline to do so.
We use the term “preembryo” to refer to the four-to-eight cell stage of a developing fertilized egg. See 62 Ethics Committee of the American Fertility Society, Ethical Considerations of Assisted Reproductive Technologies, Fertility and Sterility at 29S-30S (Supp. 1 Nov. 1994) (explaining terminology and transformation of single cell into multicellular newborn).
The issue arose in the context of a divorce proceeding.
Cryopreservation is the “[mjaintenance of the viability of excised tissues or organs at extremely low temperatures.” Stedman’s Medical Dictionary 375 (25th ed. 1990).
The husband and wife separated in August, 1995, and later that month the husband filed for divorce. In September, 1995, the husband filed a motion for an ex parte temporary restraining order regarding a vial of frozen preembryos stored at the IVF clinic. The judge did not act on the motion, but ordered a hearing at which counsel for both the husband and the wife stipulated to a “standstill order." The judge then bifurcated the issue presented here from the pending divorce action, but stated that the disposition of the issue concerning the frozen preembryos would be a final determination incorporated into the final divorce judgment. The probate judge’s order granting the husband a permanent injunction in this case was subsequently incorporated in the final divorce decree.
Although he participated in the probate proceedings, the husband did not appear or file a brief in this court.
An ectopic pregnancy is one that occurs outside the uterus, the normal locus of pregnancy. Stedman’s Medical Dictionary 488 (25th ed. 1990). In this case, the pregnancy occurred in and ruptured the fallopian tube, requiring surgery to remove it.
No pregnancy resulted. One vial of frozen preembryos remains stored at the clinic. A whole vial must be thawed at one time; single preembryos cannot be removed from the vial and thawed individually.
The clinic required that a consent form be completed each time before the egg retrievals, regardless of whether any preembryos were ultimately produced and frozen. Once preembryos are produced and frozen, a new consent form does not need to be filled out by the husband and wife to authorize a thawing and transfer of frozen preembryos, unless they change their prior choices.
On one occasion, the wife called the clinic to inquire about the form and was advised that “she could cross out any of the language on the form and fill in her own [language] to fit her wishes.”
The husband and wife signed a total of seven consent forms. All the forms were preprinted and identical to the consent form described above.
There was considerable delay between the entry of judgment in the Probate Court on May 14, 1996, and the argument on the present appeal. The delay was due to the fact that portions of the record were missing and had to be reconstructed.
In view of our disposition, it is unnecessary to summarize these findings.
See, e.g., Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L. Rev. 55 (1999); Note, To Have or Not to Have: Whose Procreative Rights Prevail in Disputes Over Dispositions of Frozen Embryos?, 27 Conn. L. Rev. 1377 (1995); Forster, The Legal and Ethical Debate Surrounding the Storage and Destruction of Frozen Human Embryos: A Reaction to the Mass Disposal in Britain and the Lack of Law in the United States, 76 Wash. U. L.Q. 759 (1998); Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St. L.J. 407 (1990); Sheinbach, Examining Disputes Over Ownership Rights to Frozen Embryos: Will Prior Consent Documents Survive if Challenged by State Law and/or Constitutional Principles?, 48 Cath. U. L. Rev. 989 (1999); Note, Divergent Conceptions: Procreational Rights and Disputes Over the Fate of Frozen Embryos, 7 B.U. Pub. Int. L.J. 315 (1998); Walter, His, Hers, or Theirs — Custody, Control, and Contracts: Allocating Decisional Authority Over Frozen Embryos, 29 Seton Hall L. Rev. 937 (1999).
Ex útero prezygotes are fertilized eggs being stored outside the body.
When the suit commenced, the wife had sought custody of the preembryos for herself for implantation. By the time the case reached the Supreme Court of Tennessee, the wife had changed her position. Davis v. Davis, 842 S.W.2d 588, 589 (Tenn. 1992), cert. denied sub nom. Stowe v. Davis, 507 U.S. 911 (1993).
The Supreme Court of Tennessee used the term “embryo” to describe the fertilized egg. Id. We use the term “preembryo” throughout for consistency.
The Court of Appeals of New York used the term “pre-zygotes” to refer to the fertilized egg. Kass v. Kass, 91 N.Y.2d 554, 557 n.1 (1998). We continue to use the term “preembryo” for consistency.
The consent form signed by the donors in the Kass case provided that the preembryos should be disposed of by donating them to scientific research. Id. at 560. The court did not address a circumstance in which the form stated that the preembryos be given to one of the donors for implantation in the donor.
While we discuss the holdings in the Davis and Kass cases, we do not necessarily subscribe to the views expressed in those decisions. See notes 22 and 23, infra.
See supra at 154-155.
See, e.g., G. L. c. 191, § 9 (revocation of dispositions in will to former spouse upon divorce or annulment; decree of separation does not terminate status of husband and wife and is not divorce for purposes of statute); Du-Mont v. Godbey, 382 Mass. 234, 236 (1981) (“Divorce, but not separation,
That is the relief sought by the wife in this case. We express no view regarding whether an unambiguous agreement between two donors concerning the disposition of frozen preembryos could be enforced over the contemporaneous objection of one of the donors, when such agreement contemplated destruction or donation of the preembryos either for research or implantation in a surrogate.
We also recognize that agreements among donors and IVF clinics are essential to clinic operations. There is no impediment to the enforcement of such contracts by the clinics or by the donors against the clinics, consistent with the principles of this opinion.
The New York court noted that the wife had not argued that the consent form violated public policy, and suggested that in some circumstances agreements may be unenforceable for that reason. Kass v. Kass, 91 N.Y.2d 554, 565 n.4 (1998).
We have refused to enforce contracts in a variety of contexts because of a conflict with public policy. See, e.g., Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc., 422 Mass. 318, 322-325 (1996) (contract in which neighborhood association promised not to oppose beer and wine license in exchange for promise of restaurant not to seek general alcohol license violates public policy); Loranger Constr. Co. v. C. Franklin Corp., 355 Mass. 727, 730 (1969) (covenant restraining trade violates public policy if not limited reasonably in time and space); DiLeo v. Denault, 329 Mass. 590, 595-596 (1953) (contract requiring proprietor of union barber shop to join barbers’ union violates public policy); Allen v. Lawrence, 318 Mass. 210, 213 (1945) (contract in which public official agrees to accept lower salary than established by law violates public policy); New Haven Road Constr. Co. v. Long, 269 Mass. 16, 18 (1929) (contract requiring payment to private contractor for use of public highway violates public policy); Parsons v. Trask, 7 Gray 473, 478 (1856) (contract establishing unlimited period of servitude violates public policy).
We have enforced agreements regarding the family relationship once the parties have freely entered into that relationship, but these cases have not involved the issue of procreation. See G. L. c. 209, § 2 (married woman may make contracts with husband); Ames v. Perry, 406 Mass. 236, 241 (1989), quoting White v. White, 141 Vt. 499, 503 (1982) (providing that “divorcing parents may in some cases bind themselves in contract on matters involving their children”); Stansel v. Stansel, 385 Mass. 510 (1982) (enforcing separation agreement); Rosenberg v. Lipnick, 377 Mass. 666, 673 (1979) (enforcing antenuptial agreement). Cf. Wilcox v. Trautz, 427 Mass. 326, 327 (1998) (enforcing agreement between unmarried cohabitants).