- The Washington Times - Tuesday, April 11, 2000

Some things are too delicate for the typical starry-eyed marital contract, like the disposition of frozen pre-embryos, i.e., the four-to-eight cell stage of a developing fertilized egg.

Hooray for the Supreme Judicial Court of Massachusetts for recognizing the same in A.Z. v. B.Z. (March 31, 2000), a unanimous decision holding such covenants unenforceable. Injecting the customary law of contracts into marital unions would be pernicious to the sacred enterprise, and should be resisted but for rare holier causes.

The A.Z. litigation was plowing virgin soil. Only a handful of courts or legislatures have addressed the proper disposition of frozen pre-embryos after marital dissolutions, and they woodenly bowed at the altar of freedom of contract. The Supreme Judicial Court of Massachusetts was more refined and enlightened in the face of unstartling facts.

The litigants married in 1977, separated in August 1995, and the husband filed for divorce the following month.

During their early marriage years, the two encountered difficulties in conception, and ultimately resorted to in vitrio fertilization treatments at a Massachusetts IVF clinic. The couple choose the Gamete Inter-Fallopian Transfer procedure in which eggs removed from the woman are simultaneously transferred with the male's sperm into the fallopian tube, where fertilization occurs before the embryo implants in the uterus.

Extrafertilized pre-embryos are frozen and stored by the IVF clinic for later use.

The GIFT procedure occasioned the birth of twin daughters in 1992, and two vials of frozen pre-embryos. Shortly before divorce in 1995, the wife directed the thawing of one and the implantation of a pre-embryo without informing the husband. No pregnancy resulted.

The divorce court honored the husband's request for a permanent injunction against the wife's use of the remaining vial of four frozen pre-embryos. She hotly protested on the ground of contractual infidelity.

As a condition of treatment, the IVF clinic required the husband and wife to sign a preprinted consent form governing the ultimate disposition of frozen pre-embryos in the event of "separation." The options were donation, destruction, or a write-in answer. On seven separate consent forms, the wife choose the latter course, and directed the pre-embryos to be returned to her for implantation. After the first consent form in 1988, the husband signed before the wife's write-in directive, an earmark that he was a virtual spectator on the scene.

A serious meeting of the minds between the couple as occurs in arms-length contracts would have been chimerical. Marriage partners dizzied by the prospect of children do not customarily entertain visions of divorce or estrangement dancing in their heads. A centerpiece of romance and matrimony is a temporary suspension of disbelief, a blindness to the inescapable vicissitudes of life. What else can explain second unions, which Sam Johnson chortled constituted a triumph of hope over experience?

Except for the obtuse or mercenary, what person marries contemplating divorce or an adversarial contractual relationship? The whole idea would torpedo the love story before the first chapter.

Suppose the husband in A.Z., instead of passive acquiescence in the wife's preference, began to negotiate over the consent form. Both parties would need to address the levels and types of animosities that might cause a marital dissolution. Possibilities like adultery escalate into probabilities and recriminations for even harboring evil thoughts of one another. The marriage could shipwreck over the consent form. The most prudent decision of the husband in A.Z., therefore, was to avoid any frozen pre-embryo dispute in the expectation that the marriage would endure and moot the entire question.

The Massachusetts Supreme Court tacitly embraced that wisdom in holding that even the most explicit and unambiguous agreement between husband and wife on that score is unenforceable at the behest of the man, at least when enforcement would entail parenthood against his will. Freedom of contract is a cherished liberty, and should not lightly be abandoned for reasons smacking of paternalism. But civilized law is a matter of degree. When the risk of foolishness is great or the potential for non-trivial and worrisome social consequences is substantial, the free will of individuals should give way. Thus, voluntary contracts for slavery, polygamy or various types of gambling are unenforceable and criminal. Individuals also escape liability for dishonoring a promise either to marry or to abandon marriages. No spousal contract to do what is necessary to conceive a child or to prevent pregnancy will be legally honored.

The A.Z. precedent wars with the decisions of sister high courts in Tennessee and New York. In the former case of Davis vs. Davis (1992), the Tennessee Supreme Court celebrated the freedom of contract in declaring that donor agreements governing pre-embryos "should be presumed valid and enforced." In the latter case of Kass vs. Kass (1998), the New York Court of Appeals echoed that libertarian liturgy.

The Tennessee and New York benches probably stumbled because they have read too much of Blackstone and too little of "Madam Bovary."

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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