Frozen embryos to find home in research lab, court rules.

Basic contract law led New York's highest court to decide that a Long Island woman cannot try to become pregnant using frozen, fertilized eggs belonging to her and her former husband unless the husband consents.

The ruling ends years of conflict between Maureen and Steven Kass over the fate of five frozen "pre-zygotes" they created before filing for divorce in 1993. Lawyers for Maureen Kass said she will not appeal the decision. (Kass v. Kass, No. 53, 1998 WL 225157 (N.Y. May 7, 1998).)

"The subject of this dispute may be novel, but the common law principles governing contract interpretation are not," Chief Judge Judith Kaye wrote for the unanimous New York Court of Appeals.

The court ruled that the Kasses must abide by a contract they signed, which stipulated that the frozen pre-zygotes would not be released from safe storage without both parties' consent. The court defined pre-zygotes as eggs that have been "penetrated by sperm but have not yet joined genetic material."

As the couple entered divorce proceedings, Maureen Kass sought to impregnate herself with the pre-zygotes, but Steven Kass refused to agree to their release from John T. Mather Memorial Hospital, where they were kept. The couple's contract stated that without both parties' consent to use the pre-zygotes, they would be turned over to the hospital where they would be used for research purposes.

Maureen Kass argued that the contract was ambiguous, but the appellate court disagreed, referring frequently to the exact language of the Kasses' contract in its opinion.

"What they, above all, did not want was a stranger taking that decision [of how to dispose of the pre-zygotes] out of their hands," Kaye wrote. "Even... if they were dead, the [consent agreements] jointly specified the disposition that would be made."

Because the court viewed Kass as a contract case, the judges did not reach the delicate question of whether pre-zygotes represent human life. Davis v. Davis, the only other known case to deal with the disposition of frozen embryos, found that these embryos are entitled to "special respect because of their potential for human life." The Davis court ruled that a husband's right to not have children outweighed his wife's right to donate the embryos to an infertile couple. (842 S.W.2d 588 (Tenn. 1992).)

The legal conflict may be over for the Kasses, but courts across the country will continue to see similar--if not more complicated--disputes on their dockets, Kaye wrote in the Kass opinion.

"In vitro fertilization procedures are now more than two decades old and in wide use .... Tens of thousands of frozen embryos annually are routinely stored in liquid nitrogen canisters, some having been in that state for more than 10 years with no instructions for their use or disposal. As science races ahead, it leaves in its trail mind-numbing ethical and legal questions."