On certification to the Superior Court, Appellate Division, whose opinion is reported at 331 N.J. Super. 223 (2000).
The opinion of the court was delivered by: Poritz, C.J.
In this case, a divorced couple disagree about the disposition of seven preembryos *fn1 that remain in storage after the couple, during their marriage, undertook in vitro fertilization procedures. We must first decide whether the husband and wife have entered into an enforceable contract that is now determinative on the disposition issue. If not, we must consider how such conflicts should be resolved by our courts.
Although the reproductive technology to accomplish in vitro fertilization has existed since the 1970s, there is little caselaw to guide us in our inquiry.
J.B. and M.B. were married in February 1992. After J.B. suffered a miscarriage early in the marriage, the couple encountered difficulty conceiving a child and sought medical advice from the Jefferson Center for Women's Specialties. Although M.B. did not have infertility problems, J.B. learned that she had a condition that prevented her from becoming pregnant. On that diagnosis, the couple decided to attempt in vitro fertilization at the Cooper Center for In Vitro Fertilization, P.C. (the Cooper Center).
The in vitro fertilization procedure requires a woman to undergo a series of hormonal injections to stimulate the production of mature oocytes *fn2 (egg cells or ova). The medication causes the ovaries to release multiple egg cells during a menstrual cycle rather than the single egg normally produced. The egg cells are retrieved from the woman's body and examined by a physician who evaluates their quality for fertilization. Egg cells ready for insemination are then combined with a sperm sample and allowed to incubate for approximately twelve to eighteen hours. Successful fertilization results in a zygote *fn3 that develops into a four- to eight-cell preembryo. At that stage, the preembryos are either returned to the woman's uterus for implantation or cryopreserved at a temperature of -196 C and stored for possible future use.
A limited number of preembryos are implanted at one time to reduce the risk of a multiple pregnancy. Cryopreservation of unused preembryos reduces, and may eliminate, the need for further ovarian stimulation and egg retrieval, thereby reducing the medical risks and costs associated with both the hormone regimen and the surgical removal of egg cells from the woman's body. Cryopreservation also permits introduction of the preembryos into the uterus at the optimal time in the natural cycle for pregnancy. Egg cells must be fertilized before undergoing cryopreservation because unfertilized cells are difficult to preserve and, once preserved, are difficult to fertilize.
The Cooper Center's consent form describes the procedure:
IVF [or in vitro fertilization] 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 -196C. 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 consent form also contains language discussing the control and disposition of the preembryos:
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 the risks outweigh the benefits.
Before undertaking in vitro fertilization in March 1995, the Cooper Center gave J.B. and M.B. the consent form with an attached agreement for their signatures. The agreement states, in relevant part:
I, J.B. (patient), and M.B. (partner), agree that all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances:
1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues . . . .
The in vitro fertilization procedure was carried out in May 1995 and resulted in eleven preembryos. Four were transferred to J.B. and seven were cryopreserved. J.B. became pregnant, either as a result of the procedure or through natural means, and gave birth to the couple's daughter on March 19, 1996. In September 1996, however, the couple separated, and J.B. informed M.B. that she wished to have the remaining preembryos discarded. M.B. did not agree.
J.B. filed a complaint for divorce on November 25, 1996, in which she sought an order from the court "with regard to the eight[*fn4] frozen embryos." In a counterclaim filed on November 24, 1997, M.B. demanded judgment compelling his wife "to allow the (8) eight frozen embryos currently in storage to be implanted or donated to other infertile couples." J.B. filed a motion for summary judgment on the preembryo issue in April 1998 alleging, in a certification filed with the motion, that she had intended to use the preembryos solely within her marriage to M.B. She stated:
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.
J.B. also certified that "[t]here were never any discussions between the Defendant and I regarding the disposition of the frozen embryos should our marriage be dissolved."
M.B., in a cross-motion filed in July 1998, described his understanding very differently. He certified that he and J.B. had agreed prior to undergoing the in vitro fertilization procedure that any unused preembryos would not be destroyed, but would be used by his wife or donated to infertile couples. His certification stated:
Before we began the I.V.F. treatments, we had many long and serious discussions regarding the process and the moral and ethical repercussions. For me, as a Catholic, the I.V.F. procedure itself posed a dilemma. We discussed this issue extensively and had agreed that no matter what happened the eggs would be either utilized by us or by other infertile couples. In fact, the option to donate [the preembryos] 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.
M.B.'s mother, father, and sister also certified that on several occasions during family gatherings J.B. had stated her intention to either use or donate the preembryos.
The couple's final judgment of divorce, entered in September 1998, resolved all issues except disposition of the preembryos. Shortly thereafter, the trial court granted J.B.'s motion for summary judgment on that issue. The court found that the reason for the parties' decision to attempt in vitro fertilization -- to create a family as a married couple –- no longer existed. J.B. and M.B. had become parents and were now divorced. Moreover, M.B. was not infertile and could achieve parenthood in the future through natural means. The court did not accept M.B.'s argument that the parties undertook the in vitro fertilization procedure to "create life," and found no need for further fact finding on the existence of an agreement between them, noting that there was no written contract memorializing the parties' intentions. Because the husband was "fully able to father a child," and because he sought control of the preembryos "merely to donate them to another couple," the court concluded that the wife had "the greater interest and should prevail." The Appellate Division affirmed. J.B. v. M.B., 331 N.J. Super. 223 (2000).
The court noted the inconsistency between the trial court's finding that "the parties engaged in IVF to create their child within the context of their marriage" and M.B.'s claim that the couple had entered into an agreement to donate or use, and not to destroy, the preembryos. Id. at 228. Before the Appellate Division, the husband argued that his constitutional right to procreate had been violated by the ruling of the trial court and sought a remand to establish the parties' understanding regarding the disposition of the preembryos. Ibid.
The Appellate Division understood this case to "involv[e] an attempt to enforce an alleged agreement to use embryos to create a child." Id. at 231. It initially examined that "attempt" in the context of two fundamental rights, "the right to procreate and the right not to procreate," citing Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), and Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147, 176-77 (1973), among other cases. J.B., supra, 331 N.J. Super. at 231-32.
The court found that, on the facts presented, the conflict between those rights was "more apparent than real." Id. at 232. It observed that destruction of the preembryos would not seriously impair M.B.'s constitutional right to procreate since "he retains the capacity to father children." Ibid. In contrast, allowing donation or use of the preembryos would impair J.B.'s right not to procreate "[e]ven if [she was] relieved of the financial and custodial responsibility for her child" because she would then have been forced to allow strangers to raise that child. Ibid. In those circumstances, and assuming "that the Fourteenth Amendment applies," the court found no impairment of the husband's constitutional rights. Ibid.
Nonetheless, the court chose not to decide this case on constitutional grounds. Id. at 233. In its view, whether court enforcement of the alleged agreement would constitute state action under the Fourteenth Amendment was unclear, and resolution of the constitutional issue was not necessary to dispose of the litigation. Id. at 233-34. The court concluded "that a contract to procreate is contrary to New Jersey public policy and is unenforceable." Id. at 234. In affirming the judgment of the trial court in favor of J.B., the panel considered the parties' views and the trial court's opinion, and determined that destruction of the preembryos was required. Id. at 235.
We granted certification, 165 N.J. 530 (2000), and now modify and affirm the judgment of the Appellate Division.
M.B. contends that the judgment of the court below violated his constitutional rights to procreation and the care and companionship of his children. He also contends that his constitutional rights outweigh J.B.'s right not to procreate because her right to bodily integrity is not implicated, as it would be in a case involving abortion. He asserts that religious convictions regarding preservation of the preembryos, and the State's interest in protecting potential life, take precedence over his former wife's more limited interests. Finally, M.B. argues that the Appellate Division should have enforced the clear agreement between the parties to give the preembryos a chance at life. He believes that his procedural due process rights have been violated because he ...