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.”

On March 5, 2014, the husband executed and had notarized a pre-printed NHF form entitled “Notice of Disposition of Frozen Human Sperm/Testicular Tissue.” He checked off the space for “other,” and handwrote: “revoking my consent to use of any of my genetic material, including the embryo created with” his wife. On the same date he also signed a notarized statement revoking his consent, which stated that he revoked his consent to any use of any of his genetic material, including the embryo created with his wife.

Justice Kaplan subsequently granted an injunction to preserve the status quo, preventing any destruction or implantation of the embryo, and referred the question of equitable distribution of the embryo to a special referee to hear and report. After a hearing, the special referee issued a report that narrowly read the consent provisions of the Consent Agreement to refer only to the terms and conditions of NHF’s storage of cryopreserved embryos, and found that the husband did not have a right to revoke his consent to the wife’s use of the embryo. The special referee awarded the embryo to the wife, concluding that the balance of equities favored the wife because this represented her last chance to become a biological parent. Justice Kaplan confirmed the special referee’s report. The husband appealed.

The First Department reversed. The appellate court noted that in the 1998 decision in Kass v. Kass the Court of Appeals determined that agreements between donors participating in IVF should be enforced pursuant to general rules of contract interpretation. The First department here ruled that the special referee’s interpretation of the Consent Agreement was contrary to its plain meaning. The Consent Agreement specified that participation in the procedures involving cryopreservation of embryos was voluntary and that either party could withdraw consent at any time. The Consent Agreement is not limited to cryopreservation or storage of the embryos, but includes the future transfer of cryopreserved embryos to the wife’s uterus. The provisions permitting either party to revoke consent were not limited to cryopreservation, but permitted either party to withdraw consent to participation in the entire IVF process.

The Consent Agreement did not indicate that the court has plenary authority to determine ownership of the embryo in the event of divorce. Additionally, contrary to Supreme Court’s finding, the husband’s revocation of consent did not violate the automatic orders served pursuant to Domestic Relations Law §?236 (B) (2) (b). Rather, the revocation comported with the orders by seeking to maintain the status quo pending equitable distribution of the parties’ marital assets, which the parties understood to include the embryo.

The Court was required to choose the construction that would carry out the plain purpose and object of the agreement. The husband’s broadly worded revocation of consent to the continued use of any of his genetic material, including the embryo created with the wife, definitively revoked his consent to the continuation of the IVF process, including implantation by the wife of the embryo at issue here.

With one party withdrawing consent, the remaining cryopreserved embryo could not be used for any purpose by either party. The parties also did not agree to the use of the embryo by any other person. Accordingly, the First Department awarded the remaining embryo to the husband, but only for the purpose of ensuring that NHF disposes of the embryo as provided in the Consent Agreement.

Eran Regev, of Manhasset, represented the husband. Elayne Kesselman, of Manhattan, represented the wife.