Kass v. Kass

The ruling involved one of the first cases to reach the courts concerning new artificial human reproduction technologies. However, in this case the court avoided 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 and political 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 through a process known as "in vitro fertilization" (IVF). IVF, in fact, became the best 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 use or 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 a balancing 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 embryos to a childless couple.

When Maureen and Steven Kass discovered shortly after their marriage in 1988 that she was biologically unable to become pregnant, the couple began an "in vitro" 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 Maureen and 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 without reaching further agreement as to the disposition of the five remaining embryos frozen and stored in a Long Island laboratory. A battle over the rights to the embryos began in 1993 when Ms. Kass went to court seeking sole custody of the remaining embryos so she could once again attempt impregnation.