By Seth J. Chandler
The New Jersey Supreme Court has joined Massachusetts in restricting the use of contract to determine the disposition of frozen embryos. In J.B. v. M.B., No. A-9, 2001 N.J. LEXIS 955 (N.J. Aug. 14, 2001), the court held (1) that any contract purporting to address such an issue needed to be memorialized in a formal written document and (2) that such a documented agreement would not be enforced if one of the parties changed views about disposition of the embryos prior to their use or destruction. While not quite creating an outright bar on the use of such agreements, as has Massachusetts, the expansive New Jersey decision comes awfully close. See A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 1057-58 (2000). (discussed in Seth J. Chandler, Massachusetts Court Diminishes Role for Contract in Reproductive Decisions, available at reproductive/20000412Massachusetts.html).
The case arose when J.B. (the egg donor) and her husband M.B. (the sperm donor) underwent conventional and successful in vitro fertilization efforts. The couple signed a written agreement with the clinic relinquishing control over the "tissues" to the clinic in the event of a divorce, unless the relevant court were to specify who took control of the tissues. As the New Jersey Supreme Court noted, this contract with the clinic resolved little, since it reserved power in the courts to decide what would happen to the tissues in the event of divorce. There was, however, conflicting testimony about a separate oral agreement. M.B., a Catholic, alleged that he had reached a separate agreement with his wife in an effort to address church opposition to destruction of preembryos. (See Congregation for the Doctrine of the Faith, Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day (Feb. 22, 1987), available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html; Declaration by Press Office on Pope's Speech to President Bush, July 23, 2001, available at http://www.vatican.va/news_services/press/vis/dinamiche/c2_en.htm ). M.B. proffered that he and his wife J.B. had agreed prior to undergoing the in vitro fertilization that any unused preembryos would be donated to infertile couples or not destroyed by his wife. M.B.'s mother, father and sister were apparently prepared to testify that J.B. had confirmed this arrangement. J.B., by contrast, was apparently prepared to testify that no such agreement had been reached.
Were this viewed as a conventional contracts case, the admissibility of the proffered testimony would be decided with reference to the New Jersey statute of frauds and its parol evidence rule. The statute of frauds contains no requirement that contracts of this nature be in writing. Moreover, the fact that M.B. had already at least partly performed would likely have taken it out of any statute of frauds that applied. And its parol evidence rule likely might well not bar the testimony, at the very least for the purpose of establishing that the contract with the fertility clinic was not intended to integrate the party's obligations with respect to disposition of pre-embryos. See J.I. Kislak Realty Corp. v. 6051 Blvd. East Corp., 469 A.2d 959 (N.J. Super. Ct. App. Div. 1983) ((noting collateral agreement 'exception' to parol evidence rule). The case would thus have been inappropriate for summary judgment. The New Jersey Supreme Court affirmed the grant of the trial court in upholding summary judgment in favor of J.B., however, not by analyzing the issue under the parol evidence rule or the statute of frauds -- indeed neither of those phrases appears in the opinion -- but instead by creating a new writing requirement. "Assuming that it would be possible to enter into a valid agreement at [the time of the in vitro fertilization process] irrevocably deciding the disposition of preempbryos in circumstances such as we have here, a formal, unambiguous memorialization of the parties' intentions would be required to confirm their joint determination. The parties do not contest the lack of such a writing."
Although this determination would seem to have been adequate to dispose of the contracts issue, the court then went on to diminish the utility of projected efforts by sophisticated parties to conform their agreements to its new writing requirement. Noting on the one hand the recent Massachusetts decision and the famous New Jersey case of In re Baby M, 537 A.2d 1227 (N.J. 1988), both of which evince hostility to the entry of contract into this supposedly different domain, and, on the other hand, the existence of court decisions (e.g. Davis. v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992)) and commentary (e.g. John A. Robertson, Prior Agreements For Disposition of Frozen Embryos, 51 Ohio St. L.J. 407, 409-18 (1990)) supporting the use of contract, and disagreement among courts and commentators, the court stated that "the better rule, and the one we adopt is to enforce agreements entered into at the time in virto fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos." (emphasis added). The latter clause, of course, makes any such agreements vanishingly close to illusory, since a contract is insignificant if both parties reserve the right to change their minds when the time for performance arrives.
Since there was no written agreement and since, in any event, one of the parties in this case -- J.B. -- may have changed her mind prior to use or destruction of the embryos, the court freed itself from contract law and instead enforced its own balancing of the sperm donor's interest in preservation of the preembryos and the egg donor's interest in their destruction. Here, like several recent courts, it found the interest against becoming a parent to prevail, particularly where, as here, the sperm donor could, through production of more sperm, create the preconditions for future fatherhood. Citing a law review article (which itself cited nothing), the court asserted that "implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions." It admitted a lack of clarity as to whether use of the preembryos in another womb would create the burdens of legal parenthood for the egg donor.
If articulated as a battle of one gamete donor's interest in furthering procreation and another gamete donor's interest in avoiding parenthood, the results of the battle here were virtually preordained, at least where the one wanting to procreate stood a respectable chance of achieving that goal by other means. But the issue avoided by the New Jersey court, perhaps because not pressed by the father, is any independent interest of the unimplanted preembryo in its oppportunity to develop into something all would recognize as human. While preembryos implanted in a womb have been accorded little such interest by the courts, at least insofar as that would conflict with the interests of the womb donor, see Roe v. Wade, 410 U.S. 113 (1973), the issue is less well resolved with respect to unimplanted preembryos whose conflict with the mother is more ephemeral. President Bush was evidently sufficiently impressed with those interests to oppose further use of preembryos for stem cell research, even while acknowledging the potential of such research to greatly improve human health. See Remarks by the President on Stem Cell Research (August 9, 2001), available at http://www.whitehouse.gov/news/releases/2001/08/20010809-2.html. On the other hand, serious recognition of rights in molecular structures simply because of their potential to become that which we recognize as human creates major problems in an era in which the components and subcomponents of human life, DNA, sperm, eggs, and, perhaps, somatic cells, abound, being brought into and out of existence with casual abandon.
If the court avoided the delicate issues raised by taking the interests of the preembryos themselves into account, it had no such hesitancy with respect to the common law of contracts. Its refusal to accept the statute of frauds as restricting the class of contracts required to be in writing may end up being the greatest legacy of this case. The opportunities and dangers of this liberation when transferred to other domains of contract law remain to be seen. In the mean time, J.B. v. M.B. must be seen as another blow for those who would use contract as a significant vehicle in resolving the future of material that has an immediate capability of becoming that which we all regard as human.