## Facts

- J.B. and M.B. married in 1992 and pursued in vitro fertilization (IVF) during the marriage due to J.B.’s infertility.
- In 1995, IVF produced eleven preembryos created from J.B.’s ova and M.B.’s sperm; four were transferred to J.B., and seven were cryopreserved for possible future use.
- The parties signed a fertility-clinic consent form stating that, upon divorce, they would relinquish control of the preembryos to the clinic unless a court designated control to a specific individual.
- The consent form did not clearly specify the disposition of the preembryos upon divorce; a portion addressing donation or research was not completed.
- J.B. gave birth to a daughter in 1996; later that year she filed for divorce and sought an order directing that the remaining seven cryopreserved preembryos be discarded.
- M.B. opposed destruction and sought implantation (in J.B. or another woman) or donation to another infertile couple, citing moral and religious objections to discarding the preembryos.
- The trial court granted summary judgment for J.B. and ordered destruction, reasoning that her interest in avoiding procreation outweighed M.B.’s interest in procreation.
- The Appellate Division affirmed, and the New Jersey Supreme Court granted review.

## Issues

1. Whether the clinic consent form or the parties’ alleged understandings created an enforceable agreement controlling the disposition of cryopreserved preembryos upon divorce.
2. If no enforceable agreement controls, what legal standard governs disposition of the preembryos and whether either party may be compelled to become a genetic parent against current wishes.
3. What remedy is appropriate when the party opposing use prevails, given the clinic form’s provision transferring control to the clinic upon divorce absent a court designation.

## Decision

- The court held the clinic consent form did not constitute an enforceable agreement between the spouses determining preembryo disposition upon divorce because it was ambiguous and reflected no meeting of the minds on the relevant choice (use, donation, continued storage, or destruction).
- The court adopted a framework under which prior IVF disposition agreements are generally enforceable, but only if neither party withdraws consent before the preembryos are used or destroyed.
- When a party revokes consent, courts must balance the parties’ interests and give special weight to the interest in not procreating.
- Applying that approach, the court ruled J.B.’s interest in avoiding forced genetic parenthood outweighed M.B.’s interest in having these particular preembryos used or donated.
- The court affirmed the result barring implantation or donation over J.B.’s objection, but modified the remedy to align with the consent form by leaving control with the clinic rather than issuing a direct judicial order of destruction.

## Legal Principles

- Cryopreserved preembryos occupy a special legal status that is not adequately addressed by treating them as either persons with independent rights or ordinary property; disputes are analyzed as conflicts in procreational autonomy.
- Courts should enforce written IVF disposition agreements in general, but a party may revoke prior consent before use or destruction.
- If consent is withdrawn, courts resolve the dispute by balancing interests, giving special weight to the right not to procreate so that no individual is forced into genetic parenthood.
- When enforcing clinic consent provisions addressing post-divorce control, courts may direct outcomes consistent with those provisions, including leaving preembryos under clinic control where no court designation of an individual is warranted.

## Conclusion

The court refused to compel genetic parenthood over a party’s current objection, found no controlling contract as between the spouses, and held that when consent is withdrawn courts must balance interests with special weight given to the right not to procreate, resulting in nonuse of the preembryos and their retention under the clinic’s control.


J.B. v. M.B., 783 A.2d 707 (N.J. 2001)