Massachusetts Court Diminishes Role for
Contract in Reproductive Decisions

By Seth J. Chandler

Modern science permits us to "grow" humans from four or eight cell preembryos stored outside the bodies of either of their genetic progenitors. In the near future, we will likely be able to grow humans from easier-to-obtain scraps of genetic material likewise capable of manipulation without bodily invasion of the full fledged humans from which the material derives. By widening the class of materials capable of becoming human, and thus arguably expanding the notion of "human life" itself, this new reproductive technology has vast import and will require our legal system to respond. The Massachusetts Supreme Judicial Court has recently taken another stumbling step in this field, addressing in A.Z. v. B.Z., 2000 Mass. LEXIS 164 (March 31, 2000), the extent to which contract law can determine rights in materials that have the potential to become human life.

The result is likely to inspire, anger and confuse potential parents, scientists and legal scholars for many years. The court held that, while a contract between the genetic progenitors of human-capable material (preembryo) and its bailee (a fertility clinic) could determine the bailee's liability for disposition of the material, a contract between the male and female progenitors of the preembryo could not waive the male progenitor's right to object to an attempt by the female progenitor to implant the preembryo in her body and gestate a full fledged human being. In so ruling, the court rejected the decision of the Tennessee Supreme Court in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), and the New York Court of Appeals in Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998), that had permitted contract law, at least under some circumstances, to govern disputes among genetic progenitors. It likewise rejected a considerable body of scholarly work suggesting a large role for contract law in disputes of this nature. See, e.g., John Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St. L.J. 407 (1990).

The Massachusetts case arose from a document executed by a fertility clinic and a husband and wife in which the wife had scratched out the pre-printed language on the clinic's prepared form and handwritten in (seven times) that in the event of the couple's separation preembryos contained in frozen vials stored at the clinic should be "returned to wife for implant." Execution of the agreement by the parties was in turn the result of a lengthy struggle of the couple to reproduce using their genetic materials, with the wife enduring two ectopic pregnancies, removal of both fallopian tubes and the discomfort of repeated fertility treatments. After the husband and wife first separated and then divorced, the wife demanded the preembryos back for implant. The ex-husband objected and sought an injunction from the court barring this use.

The Massachusetts court held that "even had the husband and wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement."

This result in A.Z. v. B.Z. is striking for a number of reasons. First, its facts present one of the stronger cases for contractual enforcement. The document at issue was negotiated among the parties. The woman may well have relied heavily on the enforceability of the promise by: (1) undergoing the "sweat equity" of unpleasant fertility treatments; and (2) creating human capable material whose needless destruction might compromise her religious beliefs. In addition, the woman who insisted on the terms at issue would have considerable difficulty in reproducing by other means.

Second, the court treated enforceability of documents relating to disposition of frozen preembryos in a highly asymmetric fashion. The court refused to enforce the contract between father and mother but stated that the same document could be enforced in actions between a joint father/mother pairing and the clinic. It likewise reserved for decision whether an otherwise identical contract could be enforced by one of the progenitors against the other where the contract called for destruction (rather than implantation) of the preembryos upon some contingency. Thus, the unenforceability of the document would not seem to rest on any procedural defect in its execution or even on its attempt to make its subject matter preembryo disposition. Rather, the objection appears to be the narrow (critics will say gerrymandered) grounds that the contract waived the right of a father to veto paternity.

Third, the court created a legal system that places huge (perhaps unbearable) weight on the fact of implantation. After an attempt at implantation, the male progenitor has no right to insist on the human-capable material being destroyed, even if doing so occasions only a moderate physical invasion of the woman. See People in the Interest of S.P.B., 651 P.2d 1213 (Colo. 1982). Under these circumstances, the Massachusetts horror of "becoming a parent against one's current will" is quite possible, the thought perhaps being that those males likely to develop objections to fatherhood need to manifest their anxiety at an earlier time. Before implantation, however, not only does the male progenitor have the right to insist on the destruction of the human-capable material, at least in Massachusetts, his right is inalienable. It is questionable whether this gross asymmetry in the rights of the genetic progenitors will survive technical advances in both gestation of early embryos and the means for their minimally invasive post-implantation destruction via drugs such as RU-486.

The court's opinion in A.Z. v. B.Z. is important even in jurisdictions that ultimately reject its absolute bar on use of contract law. This is so because the court suggests a number of ways in which the contract was deficient and so provides guidance to future drafters of preembryo disposition agreements governed by jurisdictions reluctant to embrace contract law in this field. The court questioned enforcement on the following grounds: (1) that the contract did not explicitly contain promises running between husband and wife; (2) that the contract failed to specify the period of time that it was intended to be binding; (3) that the contract addressed only a separation contingency, not a divorce contingency; (4) that, although he may have been aware of how his wife intended to modify the clinic form at issue here, the husband signed it in blank before his wife added in the language in question; and (5) that the form fails to address issues of custody, support and maintenance of any child resulting from post-divorce implantation.

With cloning, mix-and-match genetic construction, and other techniques of reproduction around the corner, contract law cannot ultimately provide a "field theory" for the disposition of such human capable materials. Notwithstanding this inability, some had hoped that for this small window of time in which scientifically aided reproduction was largely the product of consensual transactions among a small number of actors, contract law might extend its domain into the field. The Massachusetts decision in A.Z. v. B.Z. makes this extension less likely and leaves regulation more directly in the hands of the state -- a result likely to inhibit use of this new method of human reproduction and nurturance.