A.Z. v. B.Z.

725 N.E.2d 1051 (2000)

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Nature of the Case

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Facts

H and W were married in 1977, and encountered difficulties conceiving a child and underwent fertility testing. H and W both served in the military. In 1988, after arriving in Massachusetts, W began IVF treatments at an IVF clinic. H eventually moved to Massachusetts in 1991. W conceived and gave birth to twin daughters in 1992. During the 1991 IVF treatment, more preembryos were formed than were necessary for immediate implantation, and two vials of preembryos were frozen for possible future implantation. In the spring of 1995, before the couple separated, W desired more children and had one of the remaining vials of preembryos thawed, and one pre-embryo was implanted. She did not inform H. H received a notice from his insurance company regarding the procedure. Relations between H and W deteriorated. W got a protective order against H. They separated and H filed for divorce. H then filed a motion to obtain a permanent injunction, prohibiting the wife from 'using' the remaining vial of frozen preembryos. H and W had signed clinic consent forms for the relevant procedures. Each time before removal of the eggs from the wife, the clinic required H and W to sign a preprinted consent form concerning ultimate disposition of the frozen preembryos. Both H and W were required to sign the 'Consent Form for Freezing (Cyropreservation) of Embryos.' H always signed a blank form and W always filled in the rest of the details and always chose the option that 'should we become separated,' that the preembryos were to be returned to W for implantation. The probate judge concluded that, while donors are generally free to agree as to the ultimate disposition of frozen preembryos, the agreement at issue was unenforceable because of a 'change in circumstances' occurring during the four years after H and W signed the last, and governing, consent form in 1991. The probate judge concluded that 'no agreement should be enforced in equity when intervening events have changed the circumstances such that the agreement which was originally signed did not contemplate the actual situation now facing the parties.' H's interest in avoiding procreation outweighed W's interest in having additional children and granted the permanent injunction in favor of H.