431 Mass. 150, 725 N.E.2d 1051 (2000)
A.Z. and B.Z. married in 1977.1 For the first two years they resided in Virginia, where both served in the armed forces.2 They underwent fertility testing after difficulties conceiving.3 The wife suffered an ectopic pregnancy that resulted in miscarriage and removal of her left fallopian tube.4
In 1980 the couple moved to Maryland for a year of additional fertility treatment that produced no pregnancy.5 The wife transferred to Massachusetts in 1988 while the husband remained in Maryland for schooling.6 He joined her in Massachusetts in 1991.7 After arriving in Massachusetts the wife began IVF treatments at a clinic.8
The couple first attempted a GIFT procedure on November 6, 1988, which produced another ectopic pregnancy and removal of the wife's remaining fallopian tube.9 They then pursued IVF from 1988 through 1991.10 Each time before egg retrieval the couple signed a clinic consent form.11 They executed seven such forms in total, the last in August 1991.12 On every form the wife wrote that the preembryos should be returned to her for implantation should the couple separate.13 The husband usually signed the forms while blank and before the wife completed the disposition language.14 The 1991 treatment produced twin daughters born in 1992, and two vials of preembryos were frozen for possible later use.15
In spring 1995, before the couple separated, the wife thawed one vial and had a preembryo implanted without informing the husband.16 He learned of the procedure from an insurance notice.17 Relations deteriorated, the wife obtained a protective order against the husband, the couple separated, and the husband filed for divorce.18 At the time of divorce one vial containing four frozen preembryos remained in storage.19 The husband moved for a permanent injunction prohibiting the wife from using the preembryos.20
The Probate and Family Court bifurcated the preembryos issue from the divorce action and held a hearing at which both parties were represented by counsel.21 The probate judge found the consent form unenforceable because of changed circumstances since 1991 and balanced the parties' interests, granting the husband a permanent injunction.22 The Supreme Judicial Court transferred the case on its own motion.23 On February 8, 2000, it issued an order affirming the Probate and Family Court judgment, with this opinion to follow.24
Whether a consent form signed by a married couple with an IVF clinic that specifies disposition of frozen preembryos upon separation is enforceable between the parties in a subsequent divorce proceeding?25
Consent forms executed between donors and an IVF clinic are not enforceable as agreements between the donors in a divorce proceeding if the form primarily serves to guide the clinic, lacks a duration provision, employs undefined terms such as separation, the manner of execution raises questions about mutual intent, and the form does not qualify as a separation agreement under Massachusetts law.26
No. The consent form's primary purpose is to explain to the donors the benefits and risks of freezing.27 It records the donors' desires for disposition of the frozen preembryos at the time the form is executed.28 This provides the clinic with guidance if the donors no longer wish to use the frozen preembryos.29 In this case the husband and wife executed seven consent forms between 1988 and 1991.30 The husband signed blank forms before the wife completed the disposition provisions specifying that the preembryos be returned to the wife for implantation upon separation.31 The form does not indicate that the parties intended it to bind them in the event of a later disagreement between them.32 The consent form does not contain a duration provision.33 The wife sought to enforce the 1991 form four years later after the birth of twins, the obtaining of a protective order, separation, and the filing of divorce.34
The form uses the term should we become separated without defining the term.35 Separation and divorce have distinct legal meanings under Massachusetts law.36 The donors' conduct in signing the forms, with the husband signing blank and the wife filling in the language, creates doubt whether the form represents the clear intentions of both donors.37 The consent form is not a separation agreement binding on the couple in a divorce proceeding pursuant to G. L. c. 208, § 34.38 It does not contain provisions for custody, support, and maintenance in the event the wife conceives and gives birth.39
The consent form is not enforceable between the parties in the divorce proceeding.40
Whether public policy permits enforcement of an agreement that would compel one former spouse to become a parent against his or her will?41
Courts will not enforce agreements that would compel one donor to become a parent against his or her will.42 Forced procreation is not amenable to judicial enforcement as a matter of public policy.43 This policy is reflected in statutes and judicial decisions protecting freedom of personal choice in matters of marriage and family life.44
No. Enforcing the consent form against the husband would require him to become a parent over his present objection to such an undertaking.45 The husband signed the consent form in 1991.46 Enforcing it now in the context of the divorce would compel parenthood against his will.47 The Legislature has determined by statute that individuals should not be bound by agreements binding them to enter or not enter into familial relationships.48
Examples include G. L. c. 207, § 47A, which abolishes the cause of action for breach of a promise to marry.49
Another is G. L. c. 210, § 2, which provides that no mother may agree to surrender her child sooner than the fourth calendar day after birth.50
This court has expressed hesitancy to become involved in intimate questions inherent in the marriage relationship.51 It has refused to enforce prior agreements that bind individuals to future family relationships.52 Examples include surrogacy agreements without a reasonable waiting period and agreements requiring abandonment of a marriage.53 From these sources the court derives a public policy that individuals shall not be compelled to enter into intimate family relationships.54
The law shall not be used as a mechanism for forcing such relationships when they are not desired.55
Public policy does not permit enforcement of an agreement that would compel one former spouse to become a parent against his or her will.56