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Law School Case Brief

Kass v. Kass - 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998)

Rule:

Disposition of pre-zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as persons for constitutional purposes. Therefore, in a custody dispute over pre-zygotes, the relevant inquiry becomes who has dispositional authority over them.

Facts:

Although in vitro fertilization (IVF) procedures are now more than two decades old and in wide use, this is the first such dispute to reach our Court. Specifically in issue is the disposition of five frozen, stored pre-embryos, or "pre-zygotes," created five years ago, during the parties' marriage, to assist them in having a child. Now divorced, appellant (Maureen Kass) wants the pre-zygotes implanted, claiming this is her only chance for genetic motherhood; respondent (Steven Kass) objects to the burdens of unwanted fatherhood, claiming that the parties agreed at the time they embarked on the effort that the pre-zygotes would be donated to the IVF program for approved research purposes. The lower court awarded the pre-zygotes to the former wife and concluded that the former wife had exclusive decisional authority over the fertilized eggs created through the IVF process. The lower court held that former wife had not waived her right in the IVF consent, which provided that in the event of unforeseen circumstances, the pre-zygotes were to be retained by the IVF program for research. The appellate division disagreed and found that the former wife's right to privacy and bodily integrity was not implicated before implantation occurred, and that the former wife was bound by the IVF consent.

Issue:

Did the disposition of the pre-zygotes implicate the former wife's right of privacy or bodily integrity in the area of reproductive choice?

Answer:

No

Conclusion:

The court held that (1) disposition of the pre-zygotes did not implicate the former wife's right of privacy or bodily integrity in the area of reproductive choice, nor were the pre-zygotes recognized as persons for constitutional purposes. The court further held that the informed consents signed by the parties unequivocally manifested their mutual intention that under the circumstances the pre-zygotes were to be donated for research to the IVF program.

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