Facts

The husband and wife married in 1977 and faced fertility challenges, including two ectopic pregnancies that resulted in the removal of both of the wife's fallopian tubes. They underwent in vitro fertilization (IVF) treatments from 1988 to 1991, during which they signed multiple consent forms with the IVF clinic specifying the disposition of frozen preembryos in various contingencies, including separation, where the forms indicated the preembryos would be returned to the wife for implantation. As a result of the 1991 IVF treatment, the wife gave birth to twin daughters, and excess preembryos were frozen, with one vial containing four preembryos remaining in storage.

In spring 1995, amid deteriorating relations, the wife had one vial thawed and a preembryo implanted without informing the husband, who learned of it through an insurance notice. The wife obtained a protective order against the husband under G.L. c. 209A, and the husband filed for divorce. During the divorce proceedings, the probate judge bifurcated the issue of the preembryos' disposition. The husband sought a permanent injunction to prevent the wife from using the remaining preembryos, while the wife sought to enforce the consent form to allow implantation.

After a hearing where both parties were represented, the probate judge issued a permanent injunction in favor of the husband on March 25, 1996, prohibiting the wife from utilizing the preembryos. The wife appealed this injunction, and the Supreme Judicial Court transferred the case on its own motion, ultimately affirming the judgment on February 8, 2000, with the opinion explaining the reasons.

Analysis

Issue #1

Issue

Is the consent form signed by the husband and wife enforceable as a binding agreement regarding the disposition of the frozen preembryos upon their separation?

Legal Rule

Agreements concerning the disposition of frozen preembryos should be presumed valid and enforceable if they clearly represent the mutual intent of the donors, but may be unenforceable if the form's purpose, lack of duration, ambiguity in terms, or circumstances of execution indicate it does not reflect a binding contract between the parties, particularly in changed circumstances like divorce.

Rule Analysis

The consent form's primary purpose was to guide the clinic on the donors' wishes as a unit, not to serve as a binding agreement between the husband and wife in case of dispute. It lacked a duration provision, and enforcing it four years later in significantly changed circumstances, such as the birth of twins, a protective order, and divorce, was inappropriate without evidence that the donors intended it to apply indefinitely.

The form's use of the ambiguous term 'should we become separated' did not clearly encompass divorce, which has distinct legal implications. Additionally, the husband's practice of signing blank forms, which the wife later filled in, raised doubts about whether it reflected his true intent. The form also failed to address key elements like custody or support, making it insufficient as a separation agreement under G.L. c. 208, § 34.

Conclusion

No, the consent form is not enforceable as it does not represent a clear, binding agreement between the husband and wife under the circumstances.

Issue #2

Issue

Should an agreement between donors that compels one to become a parent against their will be enforced as a matter of public policy?

Legal Rule

Public policy prohibits the enforcement of agreements that force individuals into familial relationships, such as parenthood, against their contemporaneous objections, as derived from statutes like G.L. c. 207, § 47A (abolishing breach of promise to marry actions) and G.L. c. 210, § 2 (limiting pre-birth surrender agreements for adoption), and judicial precedents expressing reluctance to intervene in intimate family matters.

Rule Analysis

Existing statutes and case law reflect a policy against compelling individuals into marriage or parenthood, emphasizing personal freedom in intimate relationships. Agreements binding individuals to future family relationships are not enforced if a party reconsiders, as seen in cases invalidating surrogacy agreements without waiting periods or contracts restraining marriage.

Enforcing such an agreement would violate the husband's right to avoid procreation over his objection, and courts should not use judicial mechanisms to force such intimate decisions. In the absence of an enforceable agreement, the husband's interest in avoiding parenthood outweighed the wife's interest in procreation, supporting the injunction.

Conclusion

No, public policy precludes enforcing agreements that compel forced procreation, and thus the permanent injunction prohibiting the wife from using the preembryos was properly granted.