Kass v. Kass - 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 egg are 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 has a 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 split decision, 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 unanimously recognized 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 remaining embryos for research purposes. Ms. Kass appealed to the New York Court of Appeals.