Kass v. Kass

New York Court of Appeals · 1998 · Contracts

696 N.E.2d 174 (N.Y. 1998)

Updated July 26, 2026

ContractsIVFcryopreservationpre-zygotesdisposition agreementscontract interpretationfour cornersambiguity

Facts

During their marriage, the parties underwent IVF treatment and, before a cryopreservation procedure in May 1993, signed hospital consent forms addressing storage and disposition of any frozen pre-zygotes. The forms stated that the frozen pre-zygotes would not be released for any purpose without the written consent of both parties and that if they no longer wished to initiate a pregnancy or were unable to decide disposition, the IVF program could use the pre-zygotes for approved research. Five pre-zygotes were cryopreserved after a failed implantation attempt involving the wife's sister as a surrogate. Shortly afterward, the parties separated, signed an uncontested divorce agreement stating the pre-zygotes should be disposed of as outlined in the consent form and that no one would claim custody, and then litigated whether the wife could use them for implantation over the husband's objection.

Issue

Whether the parties' signed IVF consent documents constituted a clear and enforceable agreement governing the disposition of their frozen pre-zygotes after divorce. More specifically, the court had to decide whether those documents required donation of the pre-zygotes to the IVF program for research rather than permitting unilateral implantation by the wife.

Rule

Disposition agreements between progenitors concerning cryopreserved pre-zygotes are generally presumed valid, binding, and enforceable in disputes between them. Whether such an agreement is ambiguous is a question of law determined from the document's four corners, and courts must read the contract as a whole, giving effect to the parties' overall intention rather than isolated phrases.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Seattle, Lena Ortiz and Daniel Mercer signed fertility-clinic forms before cryopreservation. The forms stated that no stored pre-zygotes could be released without the written consent of both parties and that if they were unable to decide disposition, the clinic could use them for approved research. After their divorce, Lena seeks implantation and Daniel objects.

How should a court most likely resolve the dispute?

Explanation. The majority treated disputes like this as principally contractual when the parties have a valid prior disposition agreement. Agreements between progenitors regarding disposition of cryopreserved pre-zygotes are generally presumed valid and binding. Read as a whole, a clause requiring written consent of both parties for release means implantation requires joint decision, and a fallback research clause controls when they cannot agree.