Kass v. Kass,

696 N.E.2d 174 (1998)

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Nature of the Case

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Facts

Maureen (W) and Stephen (H) were married and began trying to conceive a child. W believed that because of prenatal exposure to DES she might have difficulty in carrying a pregnancy. W failed to become pregnant. In 1989, they turned to an IVF program after they were unsuccessful in conceiving through artificial insemination. As part of those procedures, five pre-zygotes were cryopreserved in liquid nitrogen for later use. During the IVF procedures, W became pregnant twice, but both ended in miscarriage. As part of the cryopreservation, a consent form was signed by both W and H, and another consent form was signed for disposition of the excess pre-zygotes. The later form required the consent of both parties for the release of the frozen pre-zygotes and that in the event of divorce, the legal ownership of the pre-zygotes was to be determined by the court in a property settlement. Eventually, W and H decided to divorce and they signed an uncontested divorce drawn up W indicating that no one would lay claim to the custody of the zygotes in storage. W then commenced an action requesting sole custody of the zygotes so that she could undergo implantation again. H opposed that disposition of the zygotes. The trial court granted custody to W. H appealed. That decision was reversed on appeal; when the parties have determined what should happen to the zygotes, their agreement should control. This appeal resulted.