Kass v. Kass

The outcome of the Kass case denied any broadening of the fundamental privacy 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 settling disputes 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 to honor such a contract. Ideally, legislatures were needed to provide methods by 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 the embryos, 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 prevent the unborn children from achieving life.

Other organizations, particularly feminist groups, considered the removal of the reproductive process from the woman's body and "commercialization" of the process by contract law as the ultimate exploitation of women. An argument against recognizing a fundamental right to abortion in Roe v. Wade was that it could encourage male sexual aggressiveness. If a man impregnated a woman, he could "get off the hook" from unwanted fatherhood by having the woman abort the fetus. Yet, as the argument went, the woman would likely carry the often overpowering burden of having the life of their offspring "torn" from her body. It was argued similar results could follow from artificial means of reproduction. The ability to purchase eggs and reproductive fluids, or the renting out of a womb as a gestating space essentially created a "reproductive marketplace."

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 who carried and delivered the child considered the mother, or the woman who provided the genetic material? What of the woman who did neither, but provided the child 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 consistency among 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 to be 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.