The prevalence of infertility in the United States has been widely reported.(1) While medicine is now able to offer a variety of treatments to alleviate the suffering that infertility causes, the legal community is still grappling with the "mind-numbing ethical and legal questions" that science has left in its wake.(2)
Infertility can be caused by any number of risk factors whether related to medical conditions,(3) environmental factors,(4) or a host of other conditions. In 1978, five years after the landmark decision of Roe v. Wade,(5) the first baby was conceived in a test-tube.(6) In the twenty years since in vitro fertilization (IVF) has been used to assist infertile persons, more than 35,000 babies have been born with this technique in the United States alone.(7) Surprisingly, there are no federal laws in this country that specifically regulate the creation of children with technological assistance.(8) Moreover, like the overwhelming majority of other states, New York also has not legislated directly in this area.(9)
Despite the ever-growing number of couples availing themselves of the scientific advances to conquer infertility, the law itself has lagged far behind medicine in defining the respective rights and constitutional parameters of participating in the in vitro process. Whether or not the "slow and cautious" evolution of the law is beneficial while "science races ahead"(10) is open to debate. At the time that Kass v. Kass(11) was argued before the New York Court of Appeals in March 1998, there was only one case that set out an analytical framework in an attempt to resolve disputes between divorcing couples regarding the disposition of frozen pre-zygotes.(12)
Rather than addressing the complete panoply of legal arguments available to advocate for or against the implantation or destruction of pre-zygotes,(13) this Article will instead focus upon the legal necessity of according the pre-zygotes a distinct legal classification separate from each of the gamete providers when attempting to resolve these disputes.
At the outset, some essential biological discussion is warranted. Conception or fertilization of an egg takes place after a "single spermatozoon enters the egg and the twenty-four chromosomes of each gamete fuse into a single cell of forty-eight chromosomes."(14) As a result, the cell now contains "a new and unique genome beginning a new generation."(15) At this stage, "the fertilized egg or preembryo is not yet individual, as only at implantation can a single new individual be identified."(16) "During the next three days the one-celled zygote divides several times to become an undifferentiated aggregate of two, four, six, or eight cells. When growth proceeds beyond sixteen cells, further developmental stages--the morula and then blastocyst--can be discerned."(17) "The blastocyst stage marks the developing capability to interact with maternal cells of the uterine lining, which is essential for implantation and later development to occur."(18) "In IVF programs the embryo will be transferred to a uterus when it reaches the four-, six-, or eight-cell stage, some forty-eight to seventy-two hours after conception. It is also at this stage that the embryo would be cryopreserved for later use."(19) Cryopreservation is a process whereby pre-zygotes, which are not transferred to the uterus, can be preserved.(20) Freezing the pre-zygotes in liquid nitrogen at sub-zero temperatures preserves the pre-zygote for later implantation.(21)
In 1998, the New York Court of Appeals addressed a matter of first impression concerning a dispute between a divorced couple to determine who had dispositional authority over the fate of five cryopreserved pre-zygotes formed by them during their marriage.(22) As this case proceeded through the New York State judicial system for five years with little statutory or other precedent to guide the courts, each justice grappled to find a solution to this unique case.(23)
The supreme court awarded custody to Mrs. Kass, analogizing in vitro fertilization with in vivo pregnancy.(24) A sharply divided appellate division reversed the lower court with a two-judge plurality resolving the dispute based on contract law,(25) a concurring justice ruling for the husband on an automatic veto approach(26) not on a contract theory,(27) and a two-justice dissent advocating a balancing of equities approach first articulated in the Tennessee case of Davis v. Davis,(28) although significantly more developed by the dissent.(29)
Ultimately, the Court of Appeals resolved Kass on principles of contract law by interpreting a prior executed IVF consent form.(30) The decision was analytically sound and furthered several laudable goals, most notably the judicial enforcement of written contracts concerning the disposition of pre-zygotes under a variety of circumstances.(31) It did not, however, resolve the myriad of complex legal and ethical dilemmas inherent in such disputes concerning who, in the case of divorce, has dispositional authority over cryopreserved pre-zygotes in the absence of a binding contract of dispositional intent.(32)
Both the Court of Appeals and the New York State Task Force on Life and the Law ("Task Force") concluded that since the ultimate disposition of frozen pre-zygotes is "deeply personal,"(33) it should be made only by the progenitors themselves.(34) Nonetheless, it must be noted that even when standardized IVF forms are promulgated, circumstances will always arise so as to potentially rescind those agreements under traditional rescission grounds, such as duress, fraud, coercion, or undue influence.(35) In fact, it can be argued cogently that standardized forms will never be the complete judicial panacea for these very personal disputes, since the vicissitudes of life and the full range of possibilities that could arise after cryopreservation can never be completely anticipated in a pre-printed standardized contract,(36) a conclusion recognized by both the Court of Appeals and the Task Force.(37)
By resolving the dispute in the Kass case solely upon an analysis of contract law as it pertained to those particular IVF forms and the importance of written instructions in general,(38) the court did not avail itself of the unique opportunity to "decide whether the prezygotes are entitled to `special respect.'"(39) Such an analysis would have provided courts with sound judicial precedent for cases which will inevitably occur either when the parties have not executed such a pre-conception contract or where the agreement itself is unenforceable for any number of legal reasons.
In order to underscore the difficult legal and ethical dilemmas posed by scientific developments in assisted reproductive technologies, one must only peruse the comprehensive and scholarly report issued by the Task Force and assembled by an eminently qualified panel that wrote 462 pages on the subject, complete with a minority report.(40) A sampling of the issues addressed include embryo research,(41) embryo cloning,(42) reporting information about outcomes,(43) embryo donation,44 posthumous use of frozen gametes,(45) and the commercial dimensions of assisted reproduction.(46) Other legal and ethical dilemmas can be gleaned from a review of the Davis case the first case to deal directly with this issue. Davis advanced through three levels of the Tennessee judicial system, with each court undertaking an entirely different legal analysis of the prezygotes, and accordingly, coming to entirely different results.(47) The lower court held that the pre-embryos were "children, in vitro" and awarded custody of them to the mother.(48) The court of appeals rejected that approach and, in resolving the dispute, implied that the pre-zygotes were in the nature of property and granted the parties joint custody.(49) In the final stages of the litigation, the Tennessee Supreme Court held that the pre-zygotes were neither persons nor property, but rather entitled to "special respect,"(50) as that court defined it.
"Special respect" is a precise term within the confines of assisted reproductive technology case law. In Davis, the court did not have a written contract between the parties to guide their decision.(51) Therefore, the court addressed the constitutional parameters of each party's right to privacy, which the Tennessee court opined included both an inherent right to procreate and the concomitant right not to procreate.(52)
The United States Constitution does not specifically refer to a right of privacy.(53) The United States Supreme Court, however, has developed this doctrine over the years elucidating its source in the "penumbras" of the specific guarantees in the Bill of Rights.(54) The Court explicitly recognized a fundamental right to procreate in Skinner v. Oklahoma.(55) It determined that the right to procreate is a basic civil right.(56)
The constitutional right to privacy contains many individual privacy rights, including a person's right to procreate and the other person's right not to procreate.(57) The doctrine was first set forth in Eisenstadt v. Baird,(58) where the Court stated that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."(59) The Court has long recognized that the rights to conceive and raise one's children have been deemed "essential,"(60) "basic civil rights of man,"(61) and "[r]ights far more precious ... than property rights."(62) New York has adhered to these decisions. Each of the parties in Kass had a constitutionally protected right to procreate or to avoid procreation.(63)
As the Tennessee Supreme Court aptly concluded, procreational autonomy is a right enjoyed by both men and women and includes both the right to procreate or not to procreate.(64) When confronted with this type of...