Kass v. Kass
| Decision Date | 08 September 1997 |
| Citation | 663 N.Y.S.2d 581,235 A.D.2d 150 |
| Parties | , 1997 N.Y. Slip Op. 7376 Maureen KASS, Respondent, v. Steven KASS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Linda T. Armatti-Epstein, Mineola, for appellant.
Vincent F. Stempel, Garden City, for respondent.
Before MILLER, J.P., and COPERTINO, SULLIVAN, ALTMAN and FRIEDMANN, JJ.
The instant case presents this court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent "uncontested divorce" instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermore, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.
The plaintiff Maureen Kass and the defendant Steven Kass were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a "General IVF Consent Form No. 1". It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: "INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES", comprising pages one to five of the document, and "INFORMED CONSENT FORM NO. 2--ADDENDUM NO. 2-1: CRYOPRESERVATION--STATEMENT OF DISPOSITION", consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation:
* * * * * *
(emphasis supplied).
In the second section of the informed consent document, the parties expressly stated their intent as to the cryopreservation and disposition of the pre-zygotes as follows:
* * * * * *
"(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program" (emphasis supplied).
Subsequently, on May 20, 1993, numerous ova were removed from the plaintiff. Two days later, four fertilized ova were implanted in the plaintiff's sister, who had agreed to act as a surrogate. The five remaining pre-zygotes were cryopreserved by the IVF program pursuant to the parties' express wishes as set forth in "ADDENDUM NO. 2-1" of the informed consent document, set forth above.
On June 4, 1993, the parties were advised that a surrogate pregnancy had not resulted from the May 20th procedure, and the plaintiff's sister changed her mind and refused to continue her participation. Their hopes dashed, the parties agreed almost immediately thereafter to dissolve their marriage. Hence, on June 7, 1993, the parties executed a document typed by the plaintiff which provided for an uncontested divorce. Significantly, that instrument set forth their understanding of what they previously had agreed to in the informed consent document with regard to the disposition of the remaining cryopreserved pre-zygotes, as follows:
"The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass[,] Steve Kass or anyone else will lay claim to custody of these pre-zygotes" (emphasis supplied).
Notwithstanding the foregoing, the plaintiff changed her mind and, on June 28, 1993, wrote letters to both the hospital and to her IVF physician advising them of the parties' marital difficulties and stating her adamant opposition to the destruction or release of the five pre-zygotes. The plaintiff then commenced this matrimonial action by summons and verified complaint filed July 21, 1993. Among the various items of relief sought therein was the plaintiff's request that she be awarded "sole custody of the frozen fertilized eggs now being held at Mather Memorial Hospital". The plaintiff indicated that she wanted possession of the pre-zygotes so that, rather than having them implanted in her sister as on the previous occasion, the plaintiff herself could undergo yet another IVF implantation procedure. In his verified answer, the defendant opposed both the removal of the pre-zygotes from cryopreservation and any further attempt to achieve a pregnancy, and counterclaimed for specific performance of the parties' election to permit the IVF program to retain the pre-zygotes for study and research, as provided in "ADDENDUM NO. 2-1" of the informed consent document.
By stipulation executed December 17, 1993, the parties resolved all financial and property issues in the matrimonial action, but reserved their rights with respect to the custody and possession of the pre-zygotes. By further stipulation dated April 25, 1994, the parties agreed, inter alia, to submit their respective arguments regarding custody or possession of the pre-zygotes to the court for determination. Additionally, on or about January 9, 1995, the parties agreed to rely solely on the papers submitted to the court.
In a memorandum decision dated January 18, 1995, the Supreme Court, Nassau County (Roncallo, J.), ruled in favor of the plaintiff and awarded her possession of the five pre-zygotes. The court began by reasoning that while the pre-zygotes did not have the legal status of "persons", they clearly enjoyed a status above that of mere property. The court went on to determine that a husband's procreative rights in a situation involving in vitro fertilization were no greater than in the case of an in vivo fertilization, such that those rights essentially terminated at the moment of fertilization, making the disposition of the pre-zygotes a matter exclusively within the wife's unfettered discretion. The court further determined that the informed consent document executed by the parties was not dispositive of the controversy and merely provided that in the event of divorce, a court was to decide the matter. The court also reasoned that the disposition chosen by the parties in "ADDENDUM NO. 2-1" of the informed consent document was not applicable in "a divorce situation". Finally, the court determined that the parties' "uncontested divorce" agreement of June 7, 1993, which never became operative, did not constitute a waiver by the plaintiff of "her right to determine the future of the subject zygotes". By judgment entered February 23, 1995, the court (Davis, J.), granted the plaintiff "the exclusive right to determine the fate of the subject pre-embryos", including their utilization in another attempt to achieve pregnancy. This appeal by the defendant ensued. On May 26, 1995, the judgment was stayed pending the determination of this appeal. For the reasons which follow, we disagree with the Supreme Court's resolution of the matter and instead find that the parties' mutual intent regarding the disposition of...
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