A.Z. v. B.Z

Facts

Husband A.Z. and wife B.Z. were married in 1977. The couple experienced fertility problems, and turned to in vitro fertilization (IVF) sing wife’s ova and husband’s sperm. The wife conceived and gave birth to twin daughters in 1992. More preembryos were formed than necessary, and two vials of preembryos were frozen for possible future implantation. Prior to the separation of the couple, the wife had one of the remaining vials of preembryos thawed and implanted. No pregnancy resulted. Ultimately they divorced, and one vial containing 4 frozen embryos remained in storage. During the procedure, the clinic required egg and sperm donors to sign consent forms for relevant procedures. Each consent form explained the general nature of the procedure and outlined the freezing process. The forms also require the donor to decide the disposition of the frozen preembryos on certain listed contingencies, including separation. On the initial form filled out by the wife, the decision was to return the embryos to the wife for implant if the couple became separated. Thereafter the couple underwent 6 additional egg retrievals and signed 6 additional consent forms. Each time the husband signed the form, the wife filled out the disposition and other information. Each provide for the embryos to be returned to her on separation. The probate judge concluded that while donors are generally free to agree as to the ultimate disposition of the embryos, the agreement was unenforceable due to a change in circumstances in the 4 years following the last signature, including the birth of the twins, the filing for divorce, and the wife’s seeking to thaw the preembryos for implantation. The judge found that the best solution was to balance the wife’s interest in procreation against the husband’s interest in avoiding procreation, and determined that the husband’s interest outweighed the wife’s and the permanent injunction should be granted in favor of the husband.