In a divorce, to what extent may a court award property rights to the parties’ cryopreseved embryo?
In its June, 2018 decision in Finkelstein v. Finkelstein, the Appellate Division, First Department, determined that the parties’ agreement with the fertility center they used would control. That agreement enabled the husband to withdraw his consent to the use of the embryo. Accordingly the Court enabled the center to dispose of the embryo as required by that agreement.
The parties were married in 2011. In 2012, they engaged the services of the New Hope Fertility Center (NHF) in the hope of conceiving a child via implantation of cryopreserved embryos in the wife’s uterus. They signed an agreement with NHF entitled “Consent for the Cryopreservation of Human Embryo(s)” (the Consent Agreement) in which the parties agreed “to the cryopreservation of embryos for our own use.”
Paragraph 7 of the Consent Agreement, entitled “Voluntary Participation,” provided, “I/We may withdraw my/our consent and discontinue participation at any time . . . .” Paragraph 16, entitled “Authorization,” provided, “This consent will remain in effect until such time as I notify NHF in writing of my/our wish to revoke such consent.”
After five or six further unsuccessful IVF attempts with NHF, the husband, then 58 years old, filed for divorce and requested sole custody of the one remaining cryopreserved embryo. He also moved to enjoin the wife, then 47 years old, from destroying, using, or preserving the embryo. The husband obtained an ex parte temporary restraining order embodying that relief. However, Supreme Court New York County Justice Deborah A. Kaplan later found that the husband had not demonstrated a likelihood of success on the merits, as there was nothing in the Consent Agreement that would prevent the wife from going ahead with implantation unilaterally. Justice Kaplan issued a preliminary injunction enjoining NHF and the wife from “destroying or transferring the cryopreserved embryo to anyone other than the wife.”