As couples increasingly turn to assisted reproductive treatments in order to have children, complex questions have arisen surrounding the disposition of their embryos in a divorce. In the absence of a prenuptial agreement, courts have generally taken one of three approaches: “contractual,” “contemporaneous mutual consent” or “balancing.”
Most common is the contractual approach. In Kass v. Kass, 91 N.Y.2d 554 (1998), the Court of Appeals stated that “[a]greements 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.” Id. at 565.
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