## Facts

- Maureen Kass and Steven Kass, then married, pursued in vitro fertilization (IVF) after infertility treatment.
- In May 1993, before a cycle involving cryopreservation, they signed multiple informed-consent documents governing storage and disposition of five cryopreserved “pre-zygotes” (fertilized eggs prior to joined genetic material).
- The consent documents addressed disposition if the parties later disagreed, including donation to the IVF program for approved research.
- The marriage later ended; their uncontested divorce stipulation referenced the pre-zygotes and indicated they would be handled as provided in the IVF consent documents, with neither party claiming custody.
- After the divorce, Maureen sought to use the pre-zygotes for implantation, asserting this was her only realistic opportunity for genetic motherhood.
- Steven opposed implantation and sought specific performance of the parties’ written directive to donate the pre-zygotes to research.
- The trial court awarded Maureen control and ordered that implantation be permitted within a medically reasonable time.
- The Appellate Division reversed, holding the written consents controlled and required donation for research.
- The New York Court of Appeals affirmed the Appellate Division.

## Issues

1. Whether written IVF informed-consent documents specifying disposition of cryopreserved pre-zygotes in the event of divorce or disagreement are valid and enforceable between the progenitors.
2. Whether enforcement of an agreement to donate pre-zygotes to research violates constitutional rights of privacy or bodily integrity, or contravenes public policy.
3. Whether the consent documents, read together and in context, unambiguously required donation to research when the parties disagreed after divorce.

## Decision

- The Court of Appeals affirmed the order requiring donation of the pre-zygotes to the IVF program for approved research.
- The court held that agreements between progenitors regarding disposition of their pre-zygotes are generally presumed valid, binding, and enforceable under ordinary contract principles.
- The court interpreted the signed consent documents as clearly reflecting the parties’ mutual intent that, upon disagreement (including following divorce), unused pre-zygotes would be donated for research.
- The court rejected the view that the female participant had unilateral decisional authority analogous to a pregnant person’s abortion decision, because no pregnancy existed and implantation would require further consent and action.
- The court concluded that enforcing the agreement did not violate constitutional rights and was not barred by any New York statute or public policy.

## Legal Principles

- Written IVF disposition agreements should generally be presumed valid and enforced in disputes between the progenitors.
- In the absence of governing legislation, disposition of cryopreserved pre-zygotes is determined by contract interpretation and enforcement principles.
- Pre-implantation pre-zygotes are not treated as constitutional “persons,” and their disposition does not, by itself, trigger abortion-based privacy or bodily-integrity protections associated with an existing pregnancy.
- Courts should give effect to the parties’ informed, contemporaneous allocation of decision-making authority to reduce later conflict and provide predictability in assisted reproduction arrangements.

## Conclusion

The court enforced the parties’ signed IVF consent documents, holding that advance written directives on disposition of cryopreserved pre-zygotes are presumptively binding and, on these facts, required donation to approved research when the divorced parties later disagreed about implantation.


Kass v. Kass, 91 N.Y.2d 554 (N.Y. 1998)