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J.B. v. M.B.

June 01, 2000


Before Judges D'Annunzio, Newman and Fall.

The opinion of the court was delivered by: D'annunzio, J.A.D.

Argued March 28, 2000 - Decided June 1, 2000

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

At issue is the post-divorce disposition of frozen human embryos.*fn1 The trial court ruled in favor of the wife, who seeks their destruction. The husband wants to preserve them for use, either with a woman with whom he develops a relationship or for donation to an infertile couple. The husband appeals the trial court's grant of summary judgment, and we affirm.

The parties were married in February 1992. Their efforts to have a child were unsuccessful. It was stipulated that their reproductive problems "derived from [the wife's] endometriosis and were due to blockage in one of [her] fallopian tubes." The husband's sperm count was normal, and no infertility problems were attributable to him.

The parties decided to use in vitro fertilization (IVF) in an attempt to conceive and bear a child. To that end they contracted with the Cooper Center for In Vitro Fertilization, P.C. (Cooper). IVF, in simple terms, involves the artificial stimulation of egg production in the female, removal of the eggs and their fertilization in a petri dish by the male's sperm. The fertilized egg is then implanted in the womb. Extra embryos, whose structure does not exceed eight cells, are frozen for future use in the event the initial implantation is unsuccessful. Cooper's consent form describes the procedure:

IVF will be accomplished in a routine fashion: that is, ovulation induction followed by egg recovery, insemination, fertilization, embryo development and embryo transfer of up to three or four embryos in the stimulated cycle. With the couple's consent, any "extra" embryos beyond three or four will be cryopreserved according to our freezing protocol and stored at -196 C. Extra embryos, upon thawing, must meet certain criteria for viability before being considered eligible for transfer. These criteria require that a certain minimum number of cells composing the embryo survive the freeze-thaw process. These extra embryos will be transferred into the woman's uterus in one or more future menstrual cycles for the purpose of establishing a normal pregnancy. The physicians and embryologists on the IVF team will be responsible for determining the appropriate biological conditions and the timing for transfers of cryopreserved embryos. The control and disposition of the embryos belongs to the Patient and her Partner. You will be asked to execute the attached legal statement regarding control and disposition of cryopreserved embryos. The IVF team will not be obligated to proceed with the transfer of any cryopreserved embryos if experience indicates that the risks outweigh the benefits.

During the IVF treatment, the wife became pregnant. Whether it was the result of implantation of an in vitro fertilized embryo or through intercourse is not clear from this record. In any event, the wife delivered a "healthy baby girl" in March 1996. The parties separated on September 20, 1996, and a judgment of divorce was entered on November 6, 1998. It incorporated a property settlement agreement, but reserved "a decision concerning the parties' cryopreserved preembryos/ embryos."

Thereafter, the wife moved for summary judgment. She certified that she had agreed to the IVF procedure to establish a family in the context of her marriage:

Defendant and I made the decision to attempt conception through in vitro fertilization treatment. Those decisions were made during a time when defendant and I were married and intended to remain married. Defendant and I planned to raise a family together as a married couple. I endured the in vitro process and agreed to preserve the preembryos for our use in the context of an intact family.

The wife stated that she no longer wanted the embryos implanted in her, did not want defendant to retain them for his own use, and did not want them donated to anyone else.

In his certification, the husband alleged that the wife had agreed to donate unused embryos to infertile couples. He certified that In fact, the option to donate them to infertile couples was the Plaintiff's idea. She came up with this idea because she knew of other individuals in her work place who were having trouble conceiving.

Certifications by the husband's mother, father and sister corroborated the husband's assertion that the wife had agreed to donate the embryos and had offered them to the husband's childless sister.*fn2

The parties signed an agreement with Cooper which anticipated changed circumstances such ...

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