Woman may not use frozen preembryos over ex-husband's objection.

In a case of first impression, the Massachusetts Supreme Judicial Court has invalidated a consent form providing that frozen preembryos produced as a result of in vitro fertilization would be turned over to the wife in the event that the couple separated. (A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000).)

The case involved a couple who underwent in vitro fertilization at a clinic and signed the consent form before each egg retrieval. When the couple divorced about four years after the last procedure, one vial of preembryos remained in storage at the clinic. The probate court issued a permanent injunction prohibiting the wife from using the preembryos.

The state high court affirmed, noting that courts will not enforce contracts that violate public policy. To determine public policy, the court explained, it examines both the expressions of the legislature and the court.

Applying this analysis, Justice Judith Cowin noted that the legislature has passed laws providing that people should not be bound by agreements requiring them to enter or not enter into familial relationships. For example, the legislature abolished the cause of action for the breach of a promise to marry.

The court said that its decisions have also indicated a reluctance to enforce agreements that bind individuals to future family relationships.

Based on these statutes and judicial decisions, Cowin determined that the state's public policy is "that individuals shall not be compelled to enter into intimate family relationships and that the law shall not be used as a mechanism for forcing such relationships when they are not desired." The court held that enforcing the form against the husband would require him to become a parent over his objection. Given the state's public policy, the court said, it would decline to do so.