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Reproductive Health: Massachusetts Court Holds Contracts Forcing Parenthood Violate Public Policy

Published online by Cambridge University Press:  01 January 2021

Avery W. Gardiner
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Extract

On March 31, 2000, the Massachusetts Supreme Judicial court ruled that a contract awarding custody of frozen pre-embryos to the wife upon divorce was unenforceable because it violates public policy. This is the first reported case to address a contract between the clinic and the parties where the contract would have awarded the pre-embryos to one of the gamete providers. The decision in A.Z. v. B.Z. 431 Mass. 150 (2000) differs from decisions in the two other courts of last resort deciding related cases where enforcement of contracts was supported. This case represents an important development in the legal doctrines associated with frozen pre-embryos as it explicitly differs from the other courts’ decisions in addressing pre-embryos at the same developmental stage.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 28 , Issue 2 , Summer 2000 , pp. 198 - 200
Copyright
Copyright © American Society of Law, Medicine and Ethics 2000

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References

The court defined “pre-embryo” as the four-to-eight cell stage of a developing fertilized egg. Other courts have used the terms “embryo” and “pre-zygote.” These terms are legally indistinguishable.Google Scholar
The court used initials to protect the anonymity of the ex-husband and ex-wife.Google Scholar
See Dehmel, J.M. “To Have or Not to Have: Whose Procreative Rights Prevail in Disputes over Dispositions of Frozen Embryos?” Connecticut Law Review 27 (1995) 1377–1405, and Coleman, C., “Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes,” Minnesota Law Review 84 (1999) at 55.Google Scholar
A.Z., 431 Mass. at 156. The court did not need to reach beyond contractual grounds to decide this case. That the court chose to decide the case more broadly suggests its readiness to weigh in on the pre-embryo debate. The court chose to not defer to the 5-prong test, writing a much broader decision instead. However, it is likely that later courts will examine the 5 prongs set forth in this case as a starting point for evaluating this class of contracts.Google Scholar
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See Walter, P., “His, Hers, or Theirs—Custody, Control, and Contracts: Allocating Decisional Authority over Frozen Embryos,” Seton Hall Law Review 29 (1999) 937–969.Google Scholar
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