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Contracts Keyed to Ayres
Kass v. Kass
Facts
While Plaintiff and Defendant were married, they attempted to conceive children through in vitro fertilization over the course of five years. The procedures failed and at the end of five years, the couple was left with five frozen preembryos. Plaintiff and Defendant signed a consent agreement stating that if the two could not agree on the disposition of the preembryos, the preembryos would be donated to the IVF program for research. Three weeks later, in anticipation of a divorce, Plaintiff and Defendant signed an additional agreement stating that the preembryos would be disposed of as described in the consent agreement and that neither of them would seek custody of the preembryos. Three weeks after this agreement was signed, Plaintiff notified the IVF program that she no longer consented to the destruction or release of the frozen pre-embryos. A month after this notification Plaintiff filed for divorce, seeking custody of the pre-embryos for the purpose of undergoing another implantation procedure. Defendant objected to implantation and sought specific performance of the consent agreement. The state intermediate appellate court ordered enforcement of the consent agreement and Plaintiff appealed. (The remainder of the procedural history does not appear in the casebook.)
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