AZ v. BZ

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: COWIN, J.
• Citation: AZ v. BZ, 431 Mass. 150, 725 NE 2d 1051 (Mass. 2000)
• Decision Date: 31 March 2000
• Parties: A.Z. v. B.Z.

431 Mass. 150

725 NE 2d 1051

A.Z. v. B.Z.

Supreme Judicial Court of Massachusetts, Suffolk.

November 4, 1999.

March 31, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Gretchen Van Ness for the mother.

The following submitted briefs for amici curiae:

Luke Stanton for Catholic Medical Association & others.

Dwight G. Duncan for Massachusetts Citizens for Life, Inc.

COWIN, J.

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) clinic (clinic) concerning disposition of frozen preembryos.¹ B.Z., the former wife (wife) of A.Z. (husband), appeals from a judgment of the Probate and Family Court that included, inter alia,² a permanent injunction in favor of the husband, prohibiting the wife from "utilizing" the frozen preembryos held in cryopreservation³ at the clinic. The probate judge bifurcated the issue concerning the disposition of the frozen preembryos from the then-pending divorce action.⁴ The wife appeals only from the issuance of the permanent injunction.⁵ On February 8, 2000, we issued an order affirming the judgment of the Probate and Family Court. The order stated: "It is ordered that the permanent injunction entered on the docket on March 25, 1996 in Suffolk County Probate Court (Docket No. 95 D 1683 DV) be, and the same hereby is, affirmed. Opinion or opinions to follow." This opinion states the reasons for that order.

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 Virginia, where they both served in the armed forces. While in Virginia, they encountered their first difficulties conceiving a child and underwent fertility testing. During their stay in Virginia the wife did become pregnant, but she suffered an ectopic pregnancy,⁶ as a result of which she miscarried and her left fallopian tube was removed.

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 to twin daughters in 1992. During the 1991 IVF treatment, more preembryos were formed than were necessary for immediate implantation, and two vials of preembryos were frozen for possible future implantation.

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.⁷ The husband learned of this when he received a notice from his insurance company regarding the procedure. During this period relations between the husband and wife deteriorated. The wife sought and received a protective order against the husband under G. L. c. 209A. Ultimately, they separated and the husband filed for divorce.

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.⁸

Each consent form explains the general nature of the IVF procedure and outlines the freezing process, including the financial cost and the potential benefits and risks of that process. The consent form also requires the donors to decide the disposition of the frozen preembryos on certain listed contingencies: "wife or donor" reaching normal menopause or age forty-five years; preembryos no longer being healthy; "one of us dying"; "[s]hould we become separated"; "[s]hould we both die." Under each contingency the consent form provides the following as options for disposition of the preembryos: "donated or destroyed — choose one or both." A blank line beneath these choices permits the donors to write in additional alternatives not listed as options on the form, and the form notifies the donors that they may do so.⁹ The consent form also informs the donors that they may change their minds as to any disposition, provided that both donors convey that fact in writing to the clinic.

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.¹⁰ The husband was present when the first form was completed by the wife in October, 1988. They both signed that consent form after it was finished. The form, as filled out by the wife, stated, inter alia, that if they "[s]hould become separated, [they] both agree[d] to have the embryo(s) ... return[ed] to [the] wife for implant." The husband and wife thereafter underwent six additional egg retrievals for freezing and signed six additional consent forms, one each in June, 1989, and February, 1989, two forms in December, 1989, and one each in August, 1990, and August, 1991. The August, 1991, consent form governs the vial of frozen preembryos now stored at the clinic.

Each time after signing the first consent form in October, 1988, the husband always signed a blank consent form. Sometimes a consent form was signed by the husband while he and his wife were traveling to the IVF clinic; other forms were signed before the two went to the IVF clinic. Each time, after the husband signed the form, the wife filled in the disposition and other information, and then signed the form herself. All the words she wrote in the later forms were substantially similar to the words she inserted in the first October, 1988, form. In each instance the wife specified in the option for "[s]hould we become separated," that the preembryos were to be returned to the wife for implantation.

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 1991:¹¹ the birth of the twins as a result of the IVF procedure, the wife's obtaining a protective order against the husband, the husband's filing for a divorce, and the wife's then seeking "to thaw the preembryos for implantation in the hopes of having additional children." The probate judge concluded that "[n]o agreement should be enforced in equity when intervening events have changed the circumstances such that the agreement which was originally signed did not contemplate the actual...