170 N.J. 9, 783 A.2d 707 (2001)
J.B. and M.B. were married in February 1992.1 After J.B. suffered a miscarriage early in the marriage, the couple encountered difficulty conceiving a child and sought medical advice from the Jefferson Center for Women’s Specialties.2 Although M.B. did not have infertility problems, J.B. learned that she had a condition that prevented her from becoming pregnant.3 On that diagnosis, the couple decided to attempt in vitro fertilization at the Cooper Center for In Vitro Fertilization, P.C.4
The in vitro fertilization procedure was carried out in May 1995 and resulted in eleven preembryos.56 Four were transferred to J.B. and seven were cryopreserved.7 J.B. became pregnant and gave birth to the couple’s daughter on March 19, 1996.8 In September 1996, the couple separated, and J.B. informed M.B. that she wished to have the remaining preembryos discarded.9 M.B. did not agree.10
J.B. filed a complaint for divorce on November 25, 1996, in which she sought an order from the court with regard to the frozen embryos.11 In a counterclaim filed on November 24, 1997, M.B. demanded judgment compelling his wife to allow the frozen embryos currently in storage to be implanted or donated to other infertile couples.12 J.B. filed a motion for summary judgment on the preembryo issue in April 1998, certifying that she had intended to use the preembryos solely within her marriage to M.B.13
M.B. filed a cross-motion in July 1998, certifying that the couple had agreed prior to the procedure that any unused preembryos would not be destroyed but would be used by his wife or donated to infertile couples.1415 His mother, father, and sister also certified that J.B. had stated her intention to either use or donate the preembryos.16
The couple’s final judgment of divorce, entered in September 1998, resolved all issues except disposition of the preembryos.17 The trial court granted J.B.’s motion for summary judgment on that issue.18 The Appellate Division affirmed the judgment in J.B. v. M.B., 331 N.J. Super. 223, 751 A.2d 613 (2000).19 The Supreme Court granted certification in 2000.20
Whether J.B. and M.B. entered into an enforceable contract determining the disposition of the seven cryopreserved preembryos?21
The consent form and attachment do not manifest a clear intent by J.B. and M.B. regarding disposition of the preembryos in the event of dissolution of their marriage, and absent a formal unambiguous memorialization of the parties' intentions, no binding contract providing for the disposition of the cryopreserved preembryos exists.22
No. The attachment executed by J.B. and M.B. provides that all control, direction, and ownership of the tissues will be relinquished to the IVF Program upon a dissolution of the marriage by court order unless the court specifies who takes control and direction of the tissues.23 This conditional language permits the court to direct disposition rather than setting forth a specific agreement by the parties themselves.24 M.B. certified that the couple had engaged in extensive discussions and agreed to use the preembryos or donate them to infertile couples.25 J.B. certified that there were never any discussions between the parties regarding the disposition of the frozen embryos should their marriage be dissolved.26
The parties do not contest the lack of such a writing.27 We find no need for a remand to determine the parties' intentions at the time of the in vitro fertilization process because a formal, unambiguous memorialization would be required to confirm their joint determination.28
J.B. and M.B. did not enter into an enforceable contract determining the disposition of the seven cryopreserved preembryos.29
Whether disputes over preembryo disposition in the absence of an enforceable contract should be resolved by balancing the parties' rights to procreate and not to procreate?30
Ordinarily, the party wishing to avoid procreation should prevail because the fundamental right not to procreate is irrevocably extinguished if implantation is successful, while the right to procreate is not lost if the party seeking to procreate remains able to become a parent through other reasonable means.31
Yes. In this case, J.B. wishes to have the preembryos discarded to avoid becoming a biological parent, while M.B. seeks to have them implanted or donated to other infertile couples.32 M.B. is already a father and retains the capacity to father children in the future, whether through natural procreation or further in vitro fertilization, so his right to procreate would not be seriously impaired by destruction of the preembryos.33 In contrast, J.B.'s right not to procreate would be lost through attempted use or donation of the preembryos because implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions.34
The court therefore holds that J.B.'s right not to procreate prevails over M.B.'s right to procreate under these circumstances.35
Disputes over preembryo disposition in the absence of an enforceable contract should be resolved by balancing the parties' rights to procreate and not to procreate, and the right not to procreate prevails in this case.36
Related opinions on this issue
Justice Verniero joins in the disposition of this case and in all but one aspect of the Court’s opinion.37 He does not agree with the Court’s suggestion, in dicta, that the right to procreate may depend on adoption as a consideration.38
Justice Verniero also writes to express his view that the same principles that compel the outcome in this case would permit an infertile party to assert his or her right to use a preembryo against the objections of the other party, if such use were the only means of procreation.39 In that instance, the balance arguably would weigh in favor of the infertile party absent countervailing factors of greater weight.40 He does not decide that profound question today because it is absent from this case.41
Justice Zazzali joins in the Court’s opinion, except as noted by Justice Verniero’s concurring opinion, which he also joins.42 He writes separately to note that these difficult disputes all too often prompt dire predictions.43 And yet, most assuredly, developing technologies will give rise to many more such controversies in the future.44
The resolution of those controversies depends on the amount of caution, compassion, and common sense we summon up as we balance the competing interests.45 The significance of those interests underscores the need for continued careful and deliberate decisionmaking, infused with equity, in this developing jurisprudence.46