Frieda and Fred have been married for eight years and in that time have unsuccessfully tried to conceive a child. Last year, the couple underwent in-vitro fertilization and have stored for implantation six fertilized embryos at a Massachusetts clinic. Shortly after, the couple’s relationship deteriorated and Fred filed for divorce. Frieda wants to use and implant the embryos, hoping to have children in the future. Fred wants to destroy the embryos and does not want to be a parent.

How should this issue be resolved? Are the embryos to be considered human, invoking the “best interests of the child” analysis; are they marital property, to be distributed equitably; or are they something in-between, requiring an entirely new standard?

The Massachusetts case of A.Z. v. B.Z. involved just this question.[1] In that case, a couple was married in 1977 and underwent in-vitro fertilization after having difficulties conceiving a child. Some of the embryos yielded by the IVF procedure were implanted, and the wife gave birth to twins in 1991. Other embryos were frozen and stored in a clinic for future implantation. The couple signed an agreement with the clinic, noting that in the event of separation, the wife would receive custody and control of the embryos.

In 1995, unbeknownst to the husband, the wife sought to thaw and implant one of the vials of frozen embryos, as she desired to have more children. The husband learned of the procedure performed (which did not succeed) when he received a notice from his insurance company. By that time, the relationship between husband and wife had deteriorated, and the couple had separated. One more vial containing four embryos remained frozen in the clinic. The husband sought an injunction prohibiting the wife from using the embryos in the future. The wife sought to have the ability to use the embryos at a later date, should she desire to do so.

The Probate and Family Court judge granted the husband’s request for an injunction. On appeal, the Supreme Judicial Court affirmed. The Court noted that “even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement. It is well-established that courts will not enforce contracts that violate public policy.” [2]

In essence, the Court here considered two competing privacy rights: the right to become a parent versus the freedom from being compelled to become one. The issue is a tough one: how does one weigh the importance of allowing one spouse to procreate against the importance of not forcing the other spouse to become a parent? Ultimately, the Court decided for the parent who argued that he ought to be free from being compelled to become a parent against his will.

The law regarding use, custody, and control over fertilized embryos is far from settled, and there are bound to be many other questions which pop up in family courts across the nation in the future—for example, can the embryos legally and ethically be transferred to another woman, such as the new partner of the husband? Can the embryos be devised to another person after death of one or both spouses? What will happen if the cryogenic storage fees are unpaid for a period of time—what obligations does the clinic have in this regard? It is likely that such questions and many others will be faced by the courts in the future.

If you have questions about this or other issues dealing with family law, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] A.Z. v. B.Z., 431 Mass. 150 (2000).

[2] Id., at 159-160.