There can be no doubt that New York law takes a solid stance about contracting for the disposition of both prezygotes, zygotes, and embryos outside of the womb. Over 26 years ago, Chief Judge Judith Kaye wrote the Court of Appeals decision Kass v. Kass, determining that prezygotes are not recognized as persons for constitutional purposes, citing Roe v. Wade. The court in Kass v. Kass made it clear that couples and 3rd party medical providers such as fertility clinics could enter into consent forms regarding the disposition of prezygotes and that such provisions would be upheld by the court. 

Lisa Zeiderman of Miller Zeiderman. Courtesy photo

Kass v. Kass was a matter of first impression notwithstanding that, at the time, in vitro fertilization (IVF) procedures had been utilized for over 20 years. Justice Kaye’s decision encouraged parties to contract in advance about decisions regarding IVF issues and cryopreservation. Citing the complexities inherent in the IVF process as well as the fact that circumstances can change, including “divorce, death, disappearance or incapacity of one or both partners; aging, the birth of other children…” and even that parties may disagree later about the disposition of the prezygotes, Judge Kaye determined that parties were free to sign agreements including with clinics and amongst themselves to provide certainty. In addition, the court noted that all such agreements were subject to being legally unenforceable by reason of “significantly changed circumstances.”

Julia Rodgers of HelloPrenup, Inc. Courtesy Photo