Upon the reading of the following papers: (1) Notice of Motion (005) dated November 14, 2019 submitted by the plaintiff including supporting papers and exhibits; (2) Notice of Cross Motion (006) dated January 3, 2020 submitted by the defendant including supporting papers and exhibits; (3) Supplemental Affirmation dated May 12, 2020 by the plaintiff; (4) Reply Affirmation in Further Support of Plaintiff’s Motion for Declaratory Judgment dated June 29, 2020 by the plaintiff; (5) Reply Affirmation dated September 29, 2020 by the defendant including exhibits; (6) Supplemental Affirmation dated February 9, 2021 by the defendant; (7) Supplemental Affirmation in Further Support of Plaintiff’s Motion for Declaratory Judgment dated February 11, 2021 by the plaintiff; (8) Affidavit of K.G. dated February 11, 2021 including an exhibit; and now, DECISION AND ORDER UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is In this divorce proceeding, the plaintiff has moved for declaratory judgment regarding her rights under a contract1 with her husband and Reproductive Medical Associates of New York (hereinafter referred to as “RMA”) containing an agreement entitled “Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argues that pursuant to this specific contract, she has the right to dispositional control of the embryos created by RMA with the parties’ genetic material. In response, the defendant has cross moved for summary judgment, arguing that the contract is unenforceable. He further contends, however, that if the contract is found to be enforceable, pursuant to his interpretation, he should be awarded custody of the embryos for the purpose of either preserving them for their son’s medical needs or discarding them. Lastly, he argues that in any event, he should be awarded custody and dispositional authority over the embryos at issue because circumstances have changed significantly since this divorce action has been pending. In 2016 the plaintiff, K.G., and the defendant, J.G., visited RMA and signed a contract for services to be performed by RMA utilizing the genetic materials of the parties. The donated genetic material enabled RMA to create seven embryos, one of which was transferred to the plaintiff and resulted in the birth of B., the parties’ son. B. is now four years old. In order for RMA to provide the harvesting and fertilization procedures as well as cryopreservation services, RMA required both parties to sign a contract comprised of three smaller, specific agreements, and one agreement (signed two separate times) by the plaintiff alone. The contract did not just involve the interests of the plaintiff and the defendant but also covered numerous areas of concern for RMA, the fertility clinic. These provisions in the contract were clearly intended to eliminate or reduce the liability of RMA for risks that might occur in the procedure which could result in injury to the plaintiff or damage the embryos. The Consent for Cryopreservation of Embryo(s) by Couples With Joint Custody agreement also provided for storage (with attending costs) of the embryos, and the procedures for using the embryos or for transferring the embryos should the parties wish another facility to preserve them. The contract (all three specific agreements) was made with RMA’s pre-printed forms and was signed by the plaintiff and the defendant, but was not notarized or subscribed and acknowledged in the form required for a deed to be recorded. The first question these motions raise is whether, as the defendant asserts, section 236(B)(3) of the Domestic Relations Law (“DRL”), which requires agreements between married couples to be subscribed and acknowledged in the form required for a deed to be recorded, is applicable to this contract which includes services from and benefits to a third party. This issue appears to be one of first impression. Section 236(B)(3) of the DRL states that “an agreement by the parties made before or during the marriage shall be valid and enforceable in a matrimonial action if such agreement is in writing subscribed by the parties and acknowledged or proven in the manner required to enable a deed to be recorded.” The defendant argues that as the contract in question has violated DRL §236(B)(3), it is unenforceable. This argument, however, ignores the clear reading of this section. The Court of Appeals definitively ruled on the issue relating to the disposition of embryos in an agreement between married parties and a third party fertility clinic in Kass v. Kass (91 NY2d 554 [1998]). The Court concluded therein that the disposition of the pre-zygotes or embryos does not implicate a woman’s right of privacy or bodily integrity, nor are the pre-zygotes recognized as persons for constitutional purposes. Because the decision in that case as to who would have dispositional authority was addressed in their agreement, the Court of Appeals indicated that it had no cause to decide whether the pre-zygotes are entitled to “special respect” as was found by the Court in Davis v. Davis (842 SW2d 588, 597 [Tenn. 1992], cert denied sub nom Stowe v. Davis [507 US911 [1993]), and gave dispositional authority to the party as provided in their agreement (Kass v. Kass, 91NY2d at 564-565). In the Kass case, the Court of Appeals unequivocally stated that “agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding and enforced in any dispute between them” (91 NY2d at 565). The Court of Appeals continued: “Indeed, parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize the misunderstanding and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs…” (id at 565). Although DRL §236(B)(3) was in place at the time of the Kass decision, it is not mentioned therein. That appears to be because in Kass, as in this case, there was a third party involved in the IVF contract providing services and storage (the IVF Program at John T. Mather Memorial Hospital). For this Court to disregard the agreement in this case because it was not signed before a notary and acknowledged as required for a deed to be recorded, and subject the parties’ embryos to equitable distribution (which although not a person are more special than any other type of property), would be inappropriate and more importantly, would totally disregard the specific guidelines provided in the Kass decision. Furthermore, this Court cannot assume that the Court of Appeals overlooked DRL §236(B)(3) in its decision. Moreover, equitable distribution would mandate that the embryos be distributed “equitably,” which could mean split equally between the parties, hardly a just result for property of this nature and one never contemplated in the contract signed by the parties.2 Such an interpretation would also contradict the language of DRL §236(B)(3) which speaks of agreements between parties who are married. It does not mention agreements between parties who are married on the one side and third party providers of services on the other. Here, a clear reading of the total contract shows that many of the provisions contained in the agreements are solely there to benefit the fertility clinic and bear specifically on its right to control how the embryos are to be stored, its right to be paid, and to limit its liability for the risks inherent in the procedures it was to provide. This trial court cannot disregard the specific mandate of the Court of Appeals to presume the validity of documents such as the one in question here, in favor of DRL §236(B)(3) which is on its face not applicable to this contract. In making its decision, however, the Court must address a statement contained in footnote 4 of the Kass decision which states that the parties’ agreement, although made in writing, may still be unenforceable as violative of public policy or unenforceable due to significantly changed circumstances (Kass v. Kass, 91 NY2d at 565 n 4). The defendant argues that here there are significantly changed circumstances as the plaintiff has become an abusive mother to B. and, therefore, he does not want to have any future children with her. The fact that the plaintiff is not a good parent and he does not want to co-parent any other children with her, does not, however, create a significant change of circumstances that would cause this Court to find the contract unenforceable or to even hold a hearing on the issue. The purpose of this contract (and of all three agreements comprising it) was for the plaintiff and the defendant to become parents. In choosing to engage in in vitro fertilization, a priori, they had to contemplate co-parenting future children. Therefore, the concept of co-parenting future children is not and cannot be a “significantly changed” circumstance. In addition, in this case, the parties specifically considered having a future co-parenting relationship after a divorce when they made the election on page 5 of the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement to give the plaintiff control over the embryos should there be a divorce with the specific right to establish a pregnancy. The idea that one or both parties may now not want to parent children together is not a “significantly changed” or new circumstance. The possibility that the plaintiff might not be a good parent sometime in the future is something that clearly could have been and should have been considered at the time that they made the decision to allow the wife the ability to choose to use the embryos to create a pregnancy (with the attending possibility of future co-parenting) in the event of a divorce. As most divorces where custody is contested involve allegations of parental unfitness, the defendant’s argument that the plaintiff’s poor treatment of himself and B. (during the pendency of the divorce) is a significantly changed circumstance, totally lacks merit. This could not be the kind of significantly changed circumstance contemplated by the Court of Appeals in footnote 4 of the Kass decision. To rule otherwise would open the door to future applications on similar grounds. This would in effect nullify the mandate of the Court of Appeals in Kass to “honor the written intentions of the parties.” The defendant also argues that the enforcement of this agreement could result in his responsibility to pay child support for any embryo that the defendant chooses to implant which results in a live birth. This specific possibility of paying child support is not unforeseen either and should have been considered by the defendant before he entered into the contract and agreed to give the plaintiff dispositional authority over the embryos in the event of a divorce. Furthermore, IVF contracts such as this one are not violative of public policy and are specifically encouraged by the Kass decision (Kass v. Kass, 91 NY2d at 565). That the defendant may now believe he has good reason to avoid having future children with the plaintiff does not render the contract void as against public policy. A change in his desires or opinion does not change the contract’s validity or the choices the parties made in that contract. The defendant further argues the related doctrine of frustration of purpose as a ground to invalidate this contract. That doctrine, however, requires, inter alia, that the frustrating event must be unforeseen so that its non-occurrence was a basic assumption of the contract (Warner v. Kaplan, 71 AD3d 1, 6 [1st Dept 2009]; Rebell v. Trask, 220 AD2d 594, 598 [2d Dept 1995]; Fifth Avenue of Long Island Realty Associates v. KMO-361 Realty Associates, 211 AD2d 695 [2d Dept 1995]; see 407 E. 61st Garage v. Savoy Fifth Avenue Corporation, 23 NY2d 275, 282 [1968]). The defendant states in sum and substance that the principal purpose of the contract was for the parties to maintain the option to have children together, which purpose is now frustrated because he alleges that the defendant is an abusive parent to their son and he is a victim of domestic violence at her hands. Thus, he alleges that he cannot co-parent with her. But the defendant fails to address the question of whether his desire to not have children with the plaintiff because of her alleged abusive behavior (or for any other reason) was unforeseeable. The fact remains that while he may not have expected this particular scenario, the idea that the parties may not want to have children together in the case of a divorce, no matter what the reason, and therefore may want to discard the embryos was not only foreseeable, it was specifically addressed in the agreement and a choice was made to reject the option to discard the embryos in this exact situation. Indeed, in the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement, the parties were specifically asked to choose from three options if they were to divorce. They could choose to: (1) allow the plaintiff alone to have the embryos to use for any purpose, including to establish a pregnancy; (2) the defendant alone to have the embryos to use in any manner including to establish a pregnancy in another woman; or (3) have the embryos discarded. They chose to allow the plaintiff to have complete control over the embryos instead of choosing to have the embryos discarded in the event of a divorce. This Court finds, therefore, that any “frustration” in the performance of the contract, specifically the performance of the provision that gives complete dispositional authority over the embryos to the plaintiff for any purpose in the event of a divorce, did not result from an unanticipated event. It was foreseeable and a different provision could have been made for this possibility, and this contract is accordingly enforceable (see Lainez v. Orellana, 174 AD3d 792, 795 [2d Dept 2019]). Finally, the defendant argues that by his notice dated August 7, 2019 to RMA, the embryos must be discarded because he elected, pursuant to provisions on pages 4 and 5 of the Consent for In Vitro Fertilization and Assisted Reproduction agreement, to withdraw from the Program and to have the embryos discarded. The provision on page 5 states the parties understand that they may have excess embryos in storage and that they “further understand that, at some future time, I/we (emphasis added) may elect to…(4) have the embryos discarded….” In another section of the same agreement, on page 4, it states “I/we understand that we may…decide to withdraw from participation in this Program…” (emphasis added).” That provision for withdrawal on page 4, however, does not allow individual withdrawal as it states that “we” may withdraw, nor does it determine the disposition of the embryos. The provision on page 5, however, does appear to give one individual the ability to elect to discard the embryos regardless of whether the other party agrees, giving dispositional authority to one party without the other party’s consent. The plaintiff persuasively argues in response that the drafters (RMA) of this Consent for In Vitro Fertilization and Assisted Reproduction agreement meant for this agreement to apply to cither a dual parent situation as exists in this case, or to a single parent situation. Therefore, she argues, the drafters meant for this “I/we” terminology to be applied appropriately depending on whether there were two parties involved, which would mean only the pronoun “we” would apply, or one party involved in which case the pronoun “I” would apply. Accordingly, the contract term “we” would apply here, not “I,” and the defendant would have no ability to unilaterally make the decision to discard the embryos. In a perfect world, it certainly would have been better form for the drafters to have crossed out the “I” in the “I/we” language. Their failure to do so does not, however, give the defendant a viable argument that the “we” language was inapplicable. As further support for her position, the plaintiff argues that the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement has no such “I/we” language, it contains only “we” throughout, because it only applies to couples, thereby demonstrating when any of these agreements in issue that comprise their contract with RMA applies to couples, the “we” pronoun should be utilized. Courts should examine the entire contract and particular words should not be considered in isolation but in light of the whole obligation and the intention of the parties manifested by the contract, and form should not prevail over substance (see Kass v. Kass, 91 NY2d at 566). Accordingly, the Court holds that there is no ability for the defendant to unilaterally opt to discard the embryos pursuant to the provisions on pages 4 and 5 of the Consent for In Vitro Fertilization and Assisted Reproduction agreement. Moreover, in the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement, the parties specifically agreed that the cryopreserved embryos are their joint property and will not be used without both of their consent (see page 2). It also specifically states on page 2 “[i]f, at some future time, we cannot agree to the disposition of the embryo(s), RMA will not release them without a court order.” Then three different scenarios are presented to the couple in the very next section of that agreement whereby the parties had to agree as to the disposition of the embryos should one party die, both parties die, or in the case of a divorce. The parties agreed that if one party died, the surviving party would have ownership of the embryos and could create a baby; if there was no surviving party, the parties opted to have RMA discard the embryos; and, as stated earlier, if the parties divorced, the wife was given the embryos and could do whatever she wished with them, which includes establishing a pregnancy. Thus, the parties are not in disagreement as to what happens if they divorce. Furthermore, if they had not reached an agreement in this document as to what happens to the embryos if they divorce, the issue was not to be unilaterally decided as the defendant has attempted to do with his August 7, 2019 notice of withdrawal and direction to discard the embryos. Rather, the issue was to be brought to the Court for a determination. The parties clearly intended for the Court to have the last word on disposition if they could not agree. It is apparent, pursuant to these provisions in the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement, that only the parties’ agreement or mutual consent to a dispositional course could control, not a unilateral decision. Were this Court to adopt the defendant’s interpretation of the Consent for In Vitro Fertilization and Assisted Reproduction agreement provision that says “I/we” may elect to discard the embryos,” to read that he alone may elect to discard the embryos, the provisions regarding the dispositional choices elected and the requirement that the joint property embryos be used only with both parties’ consent, (as stated in the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement), would be rendered meaningless. This court should not adopt an interpretation of one provision which operates to leave other provisions without force and effect (Corhill Corporation v. S.D. Plants, Inc., 9 NY2d 595, 599, 176 NE2d 37, 38, 217 NYS2d 1, 3 [1961]). Giving the words of both agreements their fair and reasonable meaning, based upon reasonable interpretations of the literal language used in each, the defendant may not unilaterally elect to have the embryos discarded (see Albanese v. Consolidated Rail Corporation, 245 AD2d 475, 476 [2d Dept 1997]). Thus, the defendant’s interpretation of the Consent for In Vitro Fertilization and Assisted Reproduction must be rejected because it fails to give meaning to the dispositional plan to which the parties specifically consented in the Consent for Cryopreservation of Embryos(s) by Couples with Joint Custody agreement. Lastly, whether these agreements that constitute the contract between the parties and RMA contain an ambiguity is a legal matter for this Court to decide by looking a the documents alone (MPEG LA, LLC v. Samsung Electronics Co., Ltd., 166 AD3d 13, 17 [1st Dept 2018]). Where the contract makes the parties’ overall intention clear, courts examining isolated provisions should chose the construction which carries out the plain purpose and object of the agreement (Kass v. Kass, 921 NY2d at 567). Looking at the parties’ intentions as manifested in the entire contract and affording the language of the agreements a fair, sensible, practical and reasonable interpretation, this Court concludes that there is no ambiguity presented, and any disposition of the embryos requires the consent of both the plaintiff and the defendant, and cannot be made unilaterally, as they both consented to the plaintiff’s total control over the disposition of the embryos after this divorce. Accordingly, the defendant’s August 7, 2019 election to discard the embryos is not controlling and upon the Court’s signing of the Judgment of Divorce, the plaintiff can execute her right to dispositional authority over the embryos as provided in their contract. Therefore, it is ORDERED that the plaintiff’s motion (005) to declare that the post-marital dispositional election in the Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody agreement executed on May 18, 2016 is enforceable, is granted; and it is further ORDERED that the defendant’s cross motion (006) is denied in its entirety. The above constitutes the decision and Order of this Court. Dated: May 20, 2021
