JB v. MB

• Decision Date: 01 June 2000
• Citation: 331 N.J. Super. 223,751 A.2d 613
• Parties: J.B., Plaintiff-Respondent, v. M.B., Defendant-Appellant.
• Court: New Jersey Superior Court

751 A.2d 613

331 N.J. Super. 223

J.B., Plaintiff-Respondent, v. M.B., Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 28, 2000.

Decided June 1, 2000.

Eric S. Spevak, Andrew L. Rochester and Richard M. Chiumento, Haddonfield, for defendant-appellant (Adinolfi & Spevak, attorneys; Mr. Rochester, Mr. Chiumento and Sandra E. Yampell, on the briefs).

James Katz, for plaintiff-respondent (Sagot, Jennings & Sigmond, Voorhees, attorneys; Mr. Katz, on the brief).

Lenora M. Lapidus, for amici curiae American Civil Liberties Union of New Jersey Foundation, American Society for Reproductive Medicine, and RESOLVE (Ms. Lapidus and Laura M. Le Winn, Princeton, on the joint brief).

Russell J. Passamano & Associates, for amicus curiae LifeNet, Inc. (Russell J. Passamano, Hackensack, on the brief).

Before Judges D'ANNUNZIO, NEWMAN and FALL.

The opinion of the court was delivered by D'ANNUNZIO, J.A.D.

At issue is the post-divorce disposition of frozen human embryos.¹ The trial court ruled in favor of the wife, who seeks their destruction. The husband wants to preserve them for use, either with a woman with whom he develops a relationship or for donation to an infertile couple. The husband appeals the trial court's grant of summary judgment, and we affirm.

The parties were married in February 1992. Their efforts to have a child were unsuccessful. It was stipulated that their reproductive problems "derived from [the wife's] endometriosis and were due to blockage in one of [her] fallopian tubes." The husband's sperm count was normal, and no infertility problems were attributable to him.

The parties decided to use in vitro fertilization (IVF) in an attempt to conceive and bear a child. To that end they contracted with the Cooper Center for In Vitro Fertilization, P.C. (Cooper). IVF, in simple terms, involves the artificial stimulation of egg production in the female, removal of the eggs and their fertilization in a petri dish by the male's sperm. The fertilized egg is then implanted in the womb. Extra embryos, whose structure does not exceed eight cells, are frozen for future use in the event the initial implantation is unsuccessful. Cooper's consent form describes the procedure:

IVF will be accomplished in a routine fashion: that is, ovulation induction followed by egg recovery, insemination, fertilization, embryo development and embryo transfer of up to three or four embryos in the stimulated cycle. With the couple's consent, any "extra" embryos beyond three or four will be cryopreserved according to our freezing protocol and stored at -196 C. Extra embryos, upon thawing, must meet certain criteria for viability before being considered eligible for transfer. These criteria require that a certain minimum number of cells composing the embryo survive the freeze-thaw process. These extra embryos will be transferred into the woman's uterus in one or more future menstrual cycles for the purpose of establishing a normal pregnancy. The physicians and embryologists on the IVF team will be responsible for determining the appropriate biological conditions and the timing for transfers of cryopreserved embryos. The control and disposition of the embryos belongs to the Patient and her Partner. You will be asked to execute the attached legal statement regarding control and disposition of cryopreserved embryos. The IVF team will not be obligated to proceed with the transfer of any cryopreserved embryos if experience indicates that the risks outweigh the benefits.

During the IVF treatment, the wife became pregnant. Whether it was the result of implantation of an in vitro fertilized embryo or through intercourse is not clear from this record. In any event, the wife delivered a "healthy baby girl" in March 1996. The parties separated on September 20, 1996, and a judgment of divorce was entered on November 6, 1998. It incorporated a property settlement agreement, but reserved "a decision concerning the parties' cryopreserved preembryos/embryos."

Thereafter, the wife moved for summary judgment. She certified that she had agreed to the IVF procedure to establish a family in the context of her marriage:

Defendant and I made the decision to attempt conception through in vitro fertilization treatment. Those decisions were made during a time when defendant and I were married and intended to remain married. Defendant and I planned to raise a family together as a married couple. I endured the in vitro process and agreed to preserve the preembryos for our use in the context of an intact family.

The wife stated that she no longer wanted the embryos implanted in her, did not want defendant to retain them for his own use, and did not want them donated to anyone else.

In his certification, the husband alleged that the wife had agreed to donate unused embryos to infertile couples. He certified that

In fact, the option to donate them to infertile couples was the Plaintiff's idea. She came up with this idea because she knew of other individuals in her work place who were having trouble conceiving.

Certifications by the husband's mother, father and sister corroborated the husband's assertion that the wife had agreed to donate the embryos and had offered them to the husband's childless sister.²

The parties signed an agreement with Cooper which anticipated changed circumstances such as divorce. It provided:

I, ________ (Patient) and _________ (Partner)

agree that all control, direction and ownership of our tissues will be relinquished to the IVF Program under the following circumstances:

1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues, or

2. In the event of death of both of the above named individuals, or unless provisions are made in a Will, or

3. When the patient is no longer capable of sustaining a normal pregnancy, however, the couple has the right to keep embryos maintained for up to two years before making a decision [regarding a] "host womb" or

4. At any time by our/my election which shall be in writing, or

5. When a patient fails to pay periodic embryo maintenance payment.

[Emphasis added.]

The trial judge determined that the parties engaged in IVF to create their child within the context of their marriage. He noted that they achieved their goal, perhaps through intercourse, and they were no longer married. Therefore, according to the trial judge, the reason for the creation and preservation of embryos no longer applied. The judge also relied on the fact that the husband was capable of fathering children in another relationship.

The trial judge's ruling appears to make a finding of fact inconsistent with the husband's position that the wife had agreed to donate unneeded embryos. The husband's core contention on appeal is that a trial was necessary to establish a record, including the parameters of the parties' understanding regarding disposition of the embryos. The husband also argues that the ruling violated his constitutional rights, including his rights to procreate, to due process and to equal protection of the law.

We are aware of three reported appellate decisions regarding the disposition of cryopreserved embryos. The first in time is Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993), involving disposition of seven frozen embryos in the context of a divorce. Initially, Mary Sue Davis sought to use the embryos in an effort to become pregnant. Her former husband, Junior Davis, objected on the ground "that he preferred to leave the embryos in their frozen state until he decided whether or not he wanted to become a parent outside the bounds of marriage." Id. at 589.

The trial court awarded "custody" of the embryos to Mary Sue Davis for implantation. The intermediate appellate court reversed on the ground that Junior Davis had a constitutional right not to beget a child. It vested "`joint control ... and equal voice over their disposition'" to the parties. Ibid.

The Tennessee Supreme Court granted review. It noted that each party had modified their positions. Both had remarried. Mary Sue wanted to donate the embryos to a childless couple; Junior sought their destruction. Id. at 590. The court also noted the absence of a written agreement controlling disposition and the lack of an applicable statute. Ibid.

The Tennessee Supreme Court ruled that "preembryos are not, strictly speaking, either `persons' or `property,' but occupy an interim category that entitles them to special respect because of their potential for human life." Id. at 597. The court concluded that Mary Sue and Junior "have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law." Ibid.

In dictum, the court concluded that any agreement regarding disposition of preembryos "should be presumed valid and should be enforced as between the progenitors." Ibid. As previously indicated, however, the parties had no disposition agreement, and the court refused to decide the case based on principles of implied contract. Id. at 598. The court also rejected the intermediate appellate court's effective grant of veto power to Junior Davis, who theoretically could prevent transfer of the embryos until they were no longer viable. Ibid.

The court recognized that "the right to procreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation." Id. at 601. It ruled that "the state's interest in the potential life of these preembryos is not sufficient to justify any infringement upon the freedom of these individuals to make their own decisions as to whether to allow a process to continue that may result in such a dramatic change in their lives as becoming parents." Id. at 602.

Finally, the court resolved the conflict between Mary Sue and Junior through a balancing of interests. The court determined...