91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998)
Maureen Kass and Steven Kass were married on July 4, 1988. Almost immediately they began trying to conceive a child.1 In August 1989, after unsuccessful efforts to conceive through artificial insemination, the couple enrolled in the IVF program at John T. Mather Memorial Hospital in Port Jefferson, Long Island.2
Beginning in March 1990, appellant underwent the egg retrieval process five times and fertilized eggs were transferred to her nine times.3 She became pregnant twice, once in October 1991 ending in a miscarriage and again a few months later when an ectopic pregnancy had to be surgically terminated.4
Before the final procedure involving cryopreservation, on May 12, 1993 the couple signed four consent forms provided by the hospital.5 On May 20, 1993, doctors retrieved sixteen eggs from appellant resulting in nine pre-zygotes.6 Four were transferred to appellant's sister who had volunteered to be a surrogate mother and the remaining five were cryopreserved.7
On June 7, 1993, the parties signed an uncontested divorce agreement providing that the disposition of the frozen five pre-zygotes at Mather Hospital is that they should be disposed of in the manner outlined in their consent form.8 One month later appellant commenced the present matrimonial action requesting sole custody of the pre-zygotes.9 By stipulation dated December 17, 1993 the couple settled all issues in the matrimonial action except each party's claim with respect to the pre-zygotes.10 A divorce judgment was entered on May 16, 1994.11
Supreme Court granted appellant custody of the pre-zygotes and directed her to exercise her right to implant them within a medically reasonable time.12 A divided Appellate Division reversed that decision.13
Whether the informed consent forms signed by the parties clearly expressed their intent regarding the disposition of the pre-zygotes in the event of divorce and their inability to agree on further use?14
Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them. Courts should seek to honor the parties’ expressions of choice, made before disputes erupt, with the parties’ over-all direction always uppermost in the analysis.15
Yes. The parties on May 12, 1993 signed consent forms that included addendum no. 2-1 directing that if they no longer wish to initiate a pregnancy the pre-zygotes be disposed of for approved research investigation.16 On June 7, 1993 they signed an uncontested divorce agreement stating the disposition should be as outlined in the consent form and that neither would lay claim to custody.17 These documents, executed before the dispute, manifest the parties' clear intent that the pre-zygotes be donated to the IVF program for research purposes when they could not agree on further use.18
The informed consent forms clearly expressed the parties' intent that in the event of divorce and inability to agree, the pre-zygotes would be donated for research.19