Fate of embryo rests with wife, N.Y. court says.

A New York judge has settled a custody battle of sorts for a divorcing Long Island couple and found for the wife. Neither toddlers nor teens were at the heart of this case. Instead, it centered on five human embryos - or zygote - stored in a hospital freezer. (Kass v. Kass, No. 19658-93 (N.Y., Nassau County Sup. Ct. Jan. 19,1995).)

During their five-year marriage, Maureen and Steven Kass had attempted in vitro fertilization many times. None of the attempts resulted in pregnancy. A few months after the last try, Maureen filed for divorce and sought possession of the five remaining embryos. Steven wanted the embryos - frozen two weeks after conception - to be turned over for scientific research to John T. Mather Memorial Hospital in Port Jefferson, New York, where they are being kept.

"The rights of the parties are dependent upon the nature of the zygote, not the stage of its development or its location," Justice Angelo Roncallo wrote in the decision. "To deny a husband rights while an embryo develops in the womb and grant a right to destroy while it is in a hospital freezer is to favor situs over substance."

Roncallo's decision conflicts with a Tennessee Supreme Court decision. There, the court found that, in similar circumstances, the person who wants to "avoid procreation" should prevail, assuming that the other person has the chance to have children without the use of the embryos. (Davis v. Davis, No. 34, 1992 WL 355059 (Tenn. 1992).)

The New York case raised the question of whether frozen embryos should be considered people or property. Roncallo relegated them to the property category but was quick to note: "Equating zygotes with washing machines and jewelry for the purposes of a marital distribution borders on the absurd. Unlike ordinary property, possession of the zygotes is secondary to the right to control their destiny." (See also Unanimous Court Allows Man to Bequeath Sperm, TRIAL, Sept. 1993, at 94.)