Appellant
Maureen Kass
Appellee
Steven Kass
Appellant's Claim
That five stored, frozen human embryos be granted to the woman who donated the eggs so she might fulfill her constitutional right to have children.
Chief Lawyers for Appellant
Vincent F. Stempel, Lisa Ann Spero
Chief Lawyer for Appellee
Linda T. Armatti-Epstein
Justices for the Court
Joseph W. Bellacosa, Carmen Beauchamp Ciparick, Judith S. Kaye (writing for the court), Howard Levine, George Bundy Smith, Vito J. Titone, Richard C. Wesley
Justices Dissenting
None
Place
Albany, New York, New York State Court of Appeals
Date of Decision
7 May 1998
Decision
A previous agreement signed by the two parties donating the embryos to an "invitro fertilization" research program held precedence over other claims.
Significance
The ruling involved one of the first cases to reach the courts concerning newartificial human reproduction technologies. However, in this case the courtavoided basing their decision on individual parental rights and, instead, ruled on the validity of a previous agreement between the prospective parents under common contract law. Nonetheless, the case served notice to the legal andpolitical communities that guidance from states and Congress was urgently needed to set standards the courts could follow in the new complex realm of artificial reproduction.
Thousands of children were born into the world in the 1980s and 1990s througha process known as "in vitro fertilization" (IVF). IVF, in fact, became thebest known method of assisted reproduction. Every year tens of thousands of frozen embryos were routinely stored in liquid nitrogen canisters, with many remaining in that state for years with no specific instructions for their useor disposal. Consequently, a potential quagmire of legal and ethical questions were left in the wake of such scientific advances.
In 1942 the U.S. Supreme Court found in Skinner v. Oklahoma that reproduction was an important basic right in a citizen's "pursuit of happiness." However, not until the late 1980s did cases begin reaching the courts regarding artificial reproduction. In 1989 a federal district court in York v. Jones found that individuals contributing sperm and eggs held fundamental property interests in frozen embryos. The Tennessee Supreme Court in a 1992 Davis v. Davis ruling attempted to define a framework for resolving disputes between divorcing couples over the future of frozen embryos. The framework recognized the basic right of all persons to have children, and required abalancing of the interest in becoming "a genetic parent," as opposed to an interest in avoiding genetic parenthood. In Davis, by applying this balancing test, the court found that the husband's interest in avoiding genetic parenthood was more significant than the woman's desire to donate the embryosto a childless couple.
When Maureen and Steven Kass discovered shortly after their marriage in 1988that she was biologically unable to become pregnant, the couple began an "invitro" fertilization treatment. IVF treatment involves surgical removal of eggs from a woman's ovaries, fertilizing them with a man's sperm, and then placing the fertilized eggs in the uterus of the woman or a surrogate mother. Some zygotes, or embryos, are commonly frozen for possible future use. Before initiating their procedure, the Kasses signed a consent form stipulating the embryos could not be used for impregnation without the consent of both Maureenand Steven. Otherwise, if ultimately not used, the embryos would be donated for research purposes. The agreement also required that in the event of a divorce, ownership of the embryos would be decided through either a property settlement or court decision.
After ten failed attempts at achieving pregnancy the couple divorced withoutreaching further agreement as to the disposition of the five remaining embryos frozen and stored in a Long Island laboratory. A battle over the rights tothe embryos began in 1993 when Ms. Kass went to court seeking sole custody ofthe remaining embryos so she could once again attempt impregnation.
Embryo Custody
In 1995, the New York Supreme Court in Nassau County granted Maureen Kass sole custody of the embryos. The court determined that she had "exclusive decisional authority over a nonviable fetus," and that "a husband's rights and controls of the procreative (reproductive) process end when the sperm and the eggare combined." The court based its decision on the landmark Roe v. Wade (1973) ruling. In Roe the U.S. Supreme Court held that a woman hasa fundamental right to determine the fate of her fetus before it reaches viability, a point at which the baby could survive outside of the womb, with medical assistance if need be. The court reasoned that a woman involved in the IVF process should have the same right to determine her embryo's fate as a pregnant woman would enjoy under Roe.
Steven Kass appealed to the New York State Court of Appeals which, in a splitdecision, reversed the lower court's ruling. The court declared that "a woman's established rights over her body were not relevant until an embryo was gestating (being carried) in her uterus." Moreover, the court also unanimouslyrecognized that when two parties enter into an agreement prior to an "in vitro" procedure the arrangement should be honored. The agreement unambiguously stipulated that if a dispute arose, the Kasses desired to donate the remainingembryos for research purposes. Ms. Kass appealed to the New York Court of Appeals.
Embryos as Property
In a unanimous decision, the New York Court of Appeals ruled in favor of upholding the contract which required both parties' consent before the embryos could be used for impregnation. Ms. Kass could not use the frozen embryos to impregnate herself without the consent of her former husband. Chief Judge Judith S. Kaye, delivering the majority's opinion, stressed the consent agreement,formally agreed upon prior to the dispute, must be honored and enforced. Kaye wrote that the disposition of the embryos did not invade a woman's right toprivacy or any physical bodily integrity regarding reproductive choice. Also, Ms. Kass had not argued that the consent agreement violated any public policy, or that it was not enforceable due to their circumstances. In fact, the agreement was developed to protect against the mishandling of the embryos if adispute arose, and to prevent the decision being taken out of their hands bya stranger.
Thus, the Kass court did find that the one question left to decide waswhether the consent agreement was sufficiently written to resolve the specific situation in which the couple found themselves. In making such a determination, Kaye wrote that the court could only look within the "four corners" ofthe document, meaning that only the parties' intent reflected in the writtendocument would be considered. When conducting such an analysis, the court mayalso consider the current relation of the individuals to each other and thecircumstances surrounding the document's execution. Such a process would guard against any assumptions by the court that may be counter to what the parties originally desired. If the overall intention of the parties is clear in theagreement, the agreement should apply, and be fully enforced. Regarding theKasses, the court determined through analyzing their document that the agreement "unequivocally manifest[s]" their intentions, and the embryos should be donated to the IVF program for research.
Impact
The outcome of the Kass case denied any broadening of the fundamentalprivacy protection afforded a woman by the Supreme Court in the landmark Roe v. Wade decision. The Kass court's decision also demonstrated how the law has struggled to keep pace with the rapid advances in biomedical research. Such advances, particularly in the artificial reproduction realm, led to much debate in the 1990s as to the proper role of the courts in settlingdisputes like that between the Kasses. The debate of how best to regulate the field of artificial reproduction was far from resolution by the close of the twentieth century. In fact, the Kass decision appeared to conflict directly with the only previous court ruling concerning the disposition of frozen embryos. The Tennessee case of Davis v. Davis ruled that the person seeking to avoid having children should prevail.
The New York court, in relying on the consent agreement, essentially used contract law to settle the dispute. In doing so, the court avoided addressing ethical questions swirling around artificial reproduction. Future courts may not have contracts available to refer to, or some courts may even choose not tohonor such a contract. Ideally, legislatures were needed to provide methodsby which courts could rule in cases concerning artificial reproduction disputes.
Given the lack of existing legislative guidance, Judge Kaye strongly recommended that couples should carefully draft an agreement addressing every possible situation that could arise before entering an IVF program. Uncertainties are numerous in the IVF program where the cryopreservation, or freezing of theembryos, extends viability indefinitely. Over the course of time, minds and circumstances change; disputes erupt; and divorce, death, disappearance, or incapacity can all occur. Such an agreement should certainly specify how embryos should be used in cases where the two individuals cannot agree on the use.As Kaye noted, decisions surrounding disposition of embryos is a "quintessential personal and private decision in which the court should play no role."
Abortion opponents and religious organizations immediately criticized the decision by the treating of embryos as if they were "merely" property. Such groups believed that the parties who created the embryos had no right to preventthe unborn children from achieving life.
Other organizations, particularly feminist groups, considered the removal ofthe reproductive process from the woman's body and "commercialization" of theprocess by contract law as the ultimate exploitation of women. An argument against recognizing a fundamental right to abortion in Roe v. Wade wasthat it could encourage male sexual aggressiveness. If a man impregnated a woman, he could "get off the hook" from unwanted fatherhood by having the womanabort the fetus. Yet, as the argument went, the woman would likely carry theoften overpowering burden of having the life of their offspring "torn" fromher body. It was argued similar results could follow from artificial means ofreproduction. The ability to purchase eggs and reproductive fluids, or the renting out of a womb as a gestating space essentially created a "reproductivemarketplace."
The use of women's parts in artificial reproduction was both welcomed and fiercely rejected. Those whom were unable to achieve pregnancy naturally were presented with numerous ways in which they could become parents. As in Roe, some argued that the woman's body was merely being used as a provider of"spare parts" and, as a result, cheapened.
The artificial reproduction process also gave rise to another debate. The question of what exactly constitutes "motherhood" were raised. Is the woman whocarried and delivered the child considered the mother, or the woman who provided the genetic material? What of the woman who did neither, but provided thechild with the love and nurturing during the critical years of the child's development? Legal definitions in the states were changing to keep up with scientific advances, but these changes did not necessarily result in consistencyamong the states. Many looked to Congress to establish broad standards for states to follow as the technology continued to advance.
The changing times made it clear that legislatures could no longer afford tobe left in the wake of science, especially in the area of artificial reproduction. Guidelines were needed that provided clear guidance for courts to follow in deciding disputes, as in Kass, concerning the disposition of products of the artificial reproductive process.
Related Cases
Maureen Kass
Appellee
Steven Kass
Appellant's Claim
That five stored, frozen human embryos be granted to the woman who donated the eggs so she might fulfill her constitutional right to have children.
Chief Lawyers for Appellant
Vincent F. Stempel, Lisa Ann Spero
Chief Lawyer for Appellee
Linda T. Armatti-Epstein
Justices for the Court
Joseph W. Bellacosa, Carmen Beauchamp Ciparick, Judith S. Kaye (writing for the court), Howard Levine, George Bundy Smith, Vito J. Titone, Richard C. Wesley
Justices Dissenting
None
Place
Albany, New York, New York State Court of Appeals
Date of Decision
7 May 1998
Decision
A previous agreement signed by the two parties donating the embryos to an "invitro fertilization" research program held precedence over other claims.
Significance
The ruling involved one of the first cases to reach the courts concerning newartificial human reproduction technologies. However, in this case the courtavoided basing their decision on individual parental rights and, instead, ruled on the validity of a previous agreement between the prospective parents under common contract law. Nonetheless, the case served notice to the legal andpolitical communities that guidance from states and Congress was urgently needed to set standards the courts could follow in the new complex realm of artificial reproduction.
Thousands of children were born into the world in the 1980s and 1990s througha process known as "in vitro fertilization" (IVF). IVF, in fact, became thebest known method of assisted reproduction. Every year tens of thousands of frozen embryos were routinely stored in liquid nitrogen canisters, with many remaining in that state for years with no specific instructions for their useor disposal. Consequently, a potential quagmire of legal and ethical questions were left in the wake of such scientific advances.
In 1942 the U.S. Supreme Court found in Skinner v. Oklahoma that reproduction was an important basic right in a citizen's "pursuit of happiness." However, not until the late 1980s did cases begin reaching the courts regarding artificial reproduction. In 1989 a federal district court in York v. Jones found that individuals contributing sperm and eggs held fundamental property interests in frozen embryos. The Tennessee Supreme Court in a 1992 Davis v. Davis ruling attempted to define a framework for resolving disputes between divorcing couples over the future of frozen embryos. The framework recognized the basic right of all persons to have children, and required abalancing of the interest in becoming "a genetic parent," as opposed to an interest in avoiding genetic parenthood. In Davis, by applying this balancing test, the court found that the husband's interest in avoiding genetic parenthood was more significant than the woman's desire to donate the embryosto a childless couple.
When Maureen and Steven Kass discovered shortly after their marriage in 1988that she was biologically unable to become pregnant, the couple began an "invitro" fertilization treatment. IVF treatment involves surgical removal of eggs from a woman's ovaries, fertilizing them with a man's sperm, and then placing the fertilized eggs in the uterus of the woman or a surrogate mother. Some zygotes, or embryos, are commonly frozen for possible future use. Before initiating their procedure, the Kasses signed a consent form stipulating the embryos could not be used for impregnation without the consent of both Maureenand Steven. Otherwise, if ultimately not used, the embryos would be donated for research purposes. The agreement also required that in the event of a divorce, ownership of the embryos would be decided through either a property settlement or court decision.
After ten failed attempts at achieving pregnancy the couple divorced withoutreaching further agreement as to the disposition of the five remaining embryos frozen and stored in a Long Island laboratory. A battle over the rights tothe embryos began in 1993 when Ms. Kass went to court seeking sole custody ofthe remaining embryos so she could once again attempt impregnation.
Embryo Custody
In 1995, the New York Supreme Court in Nassau County granted Maureen Kass sole custody of the embryos. The court determined that she had "exclusive decisional authority over a nonviable fetus," and that "a husband's rights and controls of the procreative (reproductive) process end when the sperm and the eggare combined." The court based its decision on the landmark Roe v. Wade (1973) ruling. In Roe the U.S. Supreme Court held that a woman hasa fundamental right to determine the fate of her fetus before it reaches viability, a point at which the baby could survive outside of the womb, with medical assistance if need be. The court reasoned that a woman involved in the IVF process should have the same right to determine her embryo's fate as a pregnant woman would enjoy under Roe.
Steven Kass appealed to the New York State Court of Appeals which, in a splitdecision, reversed the lower court's ruling. The court declared that "a woman's established rights over her body were not relevant until an embryo was gestating (being carried) in her uterus." Moreover, the court also unanimouslyrecognized that when two parties enter into an agreement prior to an "in vitro" procedure the arrangement should be honored. The agreement unambiguously stipulated that if a dispute arose, the Kasses desired to donate the remainingembryos for research purposes. Ms. Kass appealed to the New York Court of Appeals.
Embryos as Property
In a unanimous decision, the New York Court of Appeals ruled in favor of upholding the contract which required both parties' consent before the embryos could be used for impregnation. Ms. Kass could not use the frozen embryos to impregnate herself without the consent of her former husband. Chief Judge Judith S. Kaye, delivering the majority's opinion, stressed the consent agreement,formally agreed upon prior to the dispute, must be honored and enforced. Kaye wrote that the disposition of the embryos did not invade a woman's right toprivacy or any physical bodily integrity regarding reproductive choice. Also, Ms. Kass had not argued that the consent agreement violated any public policy, or that it was not enforceable due to their circumstances. In fact, the agreement was developed to protect against the mishandling of the embryos if adispute arose, and to prevent the decision being taken out of their hands bya stranger.
Thus, the Kass court did find that the one question left to decide waswhether the consent agreement was sufficiently written to resolve the specific situation in which the couple found themselves. In making such a determination, Kaye wrote that the court could only look within the "four corners" ofthe document, meaning that only the parties' intent reflected in the writtendocument would be considered. When conducting such an analysis, the court mayalso consider the current relation of the individuals to each other and thecircumstances surrounding the document's execution. Such a process would guard against any assumptions by the court that may be counter to what the parties originally desired. If the overall intention of the parties is clear in theagreement, the agreement should apply, and be fully enforced. Regarding theKasses, the court determined through analyzing their document that the agreement "unequivocally manifest[s]" their intentions, and the embryos should be donated to the IVF program for research.
Impact
The outcome of the Kass case denied any broadening of the fundamentalprivacy protection afforded a woman by the Supreme Court in the landmark Roe v. Wade decision. The Kass court's decision also demonstrated how the law has struggled to keep pace with the rapid advances in biomedical research. Such advances, particularly in the artificial reproduction realm, led to much debate in the 1990s as to the proper role of the courts in settlingdisputes like that between the Kasses. The debate of how best to regulate the field of artificial reproduction was far from resolution by the close of the twentieth century. In fact, the Kass decision appeared to conflict directly with the only previous court ruling concerning the disposition of frozen embryos. The Tennessee case of Davis v. Davis ruled that the person seeking to avoid having children should prevail.
The New York court, in relying on the consent agreement, essentially used contract law to settle the dispute. In doing so, the court avoided addressing ethical questions swirling around artificial reproduction. Future courts may not have contracts available to refer to, or some courts may even choose not tohonor such a contract. Ideally, legislatures were needed to provide methodsby which courts could rule in cases concerning artificial reproduction disputes.
Given the lack of existing legislative guidance, Judge Kaye strongly recommended that couples should carefully draft an agreement addressing every possible situation that could arise before entering an IVF program. Uncertainties are numerous in the IVF program where the cryopreservation, or freezing of theembryos, extends viability indefinitely. Over the course of time, minds and circumstances change; disputes erupt; and divorce, death, disappearance, or incapacity can all occur. Such an agreement should certainly specify how embryos should be used in cases where the two individuals cannot agree on the use.As Kaye noted, decisions surrounding disposition of embryos is a "quintessential personal and private decision in which the court should play no role."
Abortion opponents and religious organizations immediately criticized the decision by the treating of embryos as if they were "merely" property. Such groups believed that the parties who created the embryos had no right to preventthe unborn children from achieving life.
Other organizations, particularly feminist groups, considered the removal ofthe reproductive process from the woman's body and "commercialization" of theprocess by contract law as the ultimate exploitation of women. An argument against recognizing a fundamental right to abortion in Roe v. Wade wasthat it could encourage male sexual aggressiveness. If a man impregnated a woman, he could "get off the hook" from unwanted fatherhood by having the womanabort the fetus. Yet, as the argument went, the woman would likely carry theoften overpowering burden of having the life of their offspring "torn" fromher body. It was argued similar results could follow from artificial means ofreproduction. The ability to purchase eggs and reproductive fluids, or the renting out of a womb as a gestating space essentially created a "reproductivemarketplace."
The use of women's parts in artificial reproduction was both welcomed and fiercely rejected. Those whom were unable to achieve pregnancy naturally were presented with numerous ways in which they could become parents. As in Roe, some argued that the woman's body was merely being used as a provider of"spare parts" and, as a result, cheapened.
The artificial reproduction process also gave rise to another debate. The question of what exactly constitutes "motherhood" were raised. Is the woman whocarried and delivered the child considered the mother, or the woman who provided the genetic material? What of the woman who did neither, but provided thechild with the love and nurturing during the critical years of the child's development? Legal definitions in the states were changing to keep up with scientific advances, but these changes did not necessarily result in consistencyamong the states. Many looked to Congress to establish broad standards for states to follow as the technology continued to advance.
The changing times made it clear that legislatures could no longer afford tobe left in the wake of science, especially in the area of artificial reproduction. Guidelines were needed that provided clear guidance for courts to follow in deciding disputes, as in Kass, concerning the disposition of products of the artificial reproductive process.
Related Cases
- Skinner v. Oklahoma, 316 U.S. 535 (1942).
- Roe v. Wade, 410 U.S. 113 (1973).
- York v. Jones, 717 F. Supp. 421 (E.D. Va.) (1989).
- Davis v. Davis, 842 S.W. 2d 588 (1992).
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