Also known as: in vitro fertilisation · IVF
Written by attorneys — see sources below.
A medical procedure in which an ovum is surgically removed from a genetic mother’s ovary and fertilized with the sperm of the genetic father in a laboratory procedure, with the resulting embryo implanted in the uterus of a birth mother. The process often produces multiple embryos that may be cryopreserved for later use or transfer.
After Isabelle Inman and Ike Ingram divorced, Isabelle sought to have their frozen embryos thawed and discarded pursuant to a storage agreement they both signed before IVF. The clinic refused without a court order. The court enforced the prior written directive because the progenitors had addressed the contingency of divorce in their agreement.
Iris Irons and Iain Irons demanded that their storage clinic release cryopreserved embryos to an out-of-state facility for use by a gestational surrogate. The clinic refused, citing internal policies. The court treated the embryos as the couple's property under the cryopreservation agreement and ordered the transfer.
After A.Z. and B.Z. divorced, B.Z. sought to implant frozen embryos created during their marriage. A.Z. objected and sought an injunction. The court refused to enforce any implied agreement allowing implantation and balanced the parties' interests, favoring the party seeking to avoid procreation.
A.Z. and B.Z. married in 1977. For the first two years they resided in Virginia, where both served in the armed forces. They underwent fertility testing after difficulties conceiving. The wife suffered an ectopic pregnancy that resulted in miscarriage and removal of her left fallopian tube. In 1980 the couple moved to Maryland for a year of additional fertility treatment that produced no pregnancy. The wife transferred to Massachusetts in 1988 while the husband remained in Maryland for schooling. He joined her in Massachusetts in 1991. After arriving in Massachusetts the wife began IVF treatments at a clinic. 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. They then pursued IVF from 1988 through 1991. Each time before egg retrieval the couple signed a clinic consent form. They executed seven such forms in total, the last in August 1991. On every form the wife wrote that the preembryos should be returned to her for implantation should the couple separate. The husband usually signed the forms while blank and before the wife completed the disposition language. The 1991 treatment produced twin daughters born in 1992, and two vials of preembryos were frozen for possible later use. In spring 1995, before the couple separated, the wife thawed one vial and had a preembryo implanted without informing the husband. He learned of the procedure from an insurance notice. Relations deteriorated, the wife obtained a protective order against the husband, the couple separated, and the husband filed for divorce. At the time of divorce one vial containing four frozen preembryos remained in storage. The husband moved for a permanent injunction prohibiting the wife from using the preembryos. 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. 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. The Supreme Judicial Court transferred the case on its own motion. On February 8, 2000, it issued an order affirming the Probate and Family Court judgment, with this opinion to follow.
View caseAfter Robert Capato's death, his widow Karen underwent IVF using his frozen sperm and gave birth to twins. She applied for Social Security survivors benefits on their behalf. The Court held that the twins qualified only if they could inherit from Robert under state intestacy law.
Karen Capato married Robert Capato in May 1999. Shortly thereafter, Robert was diagnosed with esophageal cancer and was told that the chemotherapy he required might render him sterile. Because the couple wanted children, Robert deposited his semen in a sperm bank before undergoing chemotherapy. Despite Robert's treatment, Karen conceived naturally and gave birth to a son in August 2001. Robert's health deteriorated in late 2001, and he died in Florida in March 2002. His will, executed in Florida, named as beneficiaries the son born of his marriage to Karen and two children from a previous marriage, but made no provision for children conceived after his death. Shortly after Robert's death, Karen began in vitro fertilization using her husband's frozen sperm. She conceived in January 2003 and gave birth to twins in September 2003, eighteen months after Robert's death. Karen Capato claimed survivors insurance benefits on behalf of the twins. The Social Security Administration denied her application. The U.S. District Court for the District of New Jersey affirmed the agency's decision. The court determined that the twins would qualify for benefits only if they could inherit from the deceased wage earner under Florida intestacy law. Under Florida law, a child born posthumously may inherit only if conceived during the decedent's lifetime. The Court of Appeals for the Third Circuit reversed. It concluded that the undisputed biological children of a deceased wage earner and his widow qualify for survivors benefits without regard to state intestacy law. Courts of Appeals had divided on the question, with some circuits reaching conflicting results. The Supreme Court granted certiorari to resolve the conflict.
View caseMaureen Kass and Steven Kass signed multiple consent forms before IVF that addressed disposition of frozen embryos upon divorce. After their marriage ended, Maureen sought implantation while Steven sought destruction. The court enforced the forms as a prior agreement governing the embryos.
Maureen Kass and Steven Kass were married on July 4, 1988. Almost immediately they began trying to conceive a child. 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. Beginning in March 1990, appellant underwent the egg retrieval process five times and fertilized eggs were transferred to her nine times. 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. Before the final procedure involving cryopreservation, on May 12, 1993 the couple signed four consent forms provided by the hospital. On May 20, 1993, doctors retrieved sixteen eggs from appellant resulting in nine pre-zygotes. Four were transferred to appellant's sister who had volunteered to be a surrogate mother and the remaining five were cryopreserved. 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. One month later appellant commenced the present matrimonial action requesting sole custody of the pre-zygotes. 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. A divorce judgment was entered on May 16, 1994. Supreme Court granted appellant custody of the pre-zygotes and directed her to exercise her right to implant them within a medically reasonable time. A divided Appellate Division reversed that decision.
View caseMark and Crispina Calvert arranged for Anna Johnson to serve as a gestational surrogate after IVF created an embryo using their gametes. Anna later claimed parentage. The court held that the parties' intent as expressed in the surrogacy agreement determined legal parentage of the resulting child.
In 1984 Crispina Calvert underwent a hysterectomy that left her ovaries capable of producing eggs. She and her husband Mark desired a child genetically related to both of them. In 1989 Anna Johnson, a licensed vocational nurse who had previously given birth to a daughter, learned of Crispina's situation from a coworker and offered to serve as a surrogate. On January 15, 1990, Mark, Crispina, and Anna signed a written contract providing that an embryo created from Mark's sperm and Crispina's egg would be implanted in Anna, who would carry the child to term and relinquish all parental rights to the Calverts upon birth. In exchange the Calverts agreed to pay Anna $10,000 in installments, with the final payment due six weeks after birth, and to purchase a $200,000 life insurance policy on Anna's life. The zygote was implanted on January 19, 1990, and an ultrasound confirmed Anna's pregnancy less than a month later. During the pregnancy relations between the parties deteriorated. Anna felt the Calverts were not providing sufficient attention or obtaining the required insurance policy in a timely manner. In July 1990 Anna demanded the balance of the payments or she would refuse to relinquish the child. The following month the Calverts filed suit in superior court seeking a declaration that they were the legal parents of the unborn child. Anna filed her own action to be declared the mother, the cases were consolidated, and the parties agreed to the appointment of a guardian ad litem for the child. The child was born on September 19, 1990. Blood samples taken from Anna and the child excluded Anna as the genetic mother. The parties stipulated that Mark and Crispina were the genetic parents. After a trial in October 1990 the superior court ruled that the Calverts were the child's genetic, biological, and natural parents, that Anna had no parental rights, that the surrogacy contract was enforceable, and that Anna was not entitled to visitation. Anna appealed. The Court of Appeal for the Fourth District, Division Three, affirmed the judgment. The Supreme Court of California granted review.
View caseCourts first enforce any prior written agreement addressing disposition upon divorce. Only if no such agreement exists do courts balance the parties' interests, generally favoring the party who wishes to avoid procreation absent compelling circumstances.
When a cryopreservation agreement characterizes the embryos as the couple's property, courts treat them as a form of property subject to contract principles and the parties' disposition rights rather than as legal persons.
The original cryopreservation agreement that expressly grants the couple property rights and removal authority controls over a subsequent research agreement between the clinic and a third party that attempts to recharacterize the embryos.
No. The specific storage addendum labeling the embryos as the couple's sole property and granting exclusive disposition rights controls over an optional research-donation checkbox on a separate intake form.
…1995, the husband filed a motion for an ex parte temporary restraining order regarding a vial of frozen preembryos stored at the IVF clinic. The judge did not act on the motion, but ordered a hearing at which counsel for both the husband and the wife stipulated to a “standstill order." The judge then bifurcated the issue…