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N.Y. Fertilized Eggs Go to Research

May 8, 1998

ALBANY, N.Y. (AP) _ Maureen Kass cannot have children naturally because, while in her mother’s womb, she was exposed to a drug that causes serious problems during pregnancy and delivery.

Kass and husband Steven tried to have a baby in 1993 through in-vitro fertilization, with her sister agreeing to carry the baby.

The procedure failed, and the couple soon split up. Mrs. Kass still wants to use the divorced couple’s five frozen embryos to have children.

But the state’s highest court ruled in a 7-0 decision Thursday that an agreement signed by the couple in 1993 requires the embryos to be donated to research and then destroyed.

``We’re bitterly disappointed at this point,″ Mrs. Kass’ attorney Vincent Stempel said. ``Mrs. Kass wanted to have a child.″

Kass’ attorney did not return telephone calls seeking comment.

The Court of Appeals found the agreement to be valid. It stated the embryos were to be donated if both parties did not agree to use them.

It was the first case of its kind to reach the appeals court in New York, and courts in various states have been wrestling with the question of frozen embryos and divorce for years.

In a 1992 Tennessee case, the state Supreme Court ruled that the husband’s right not to have children outweighed his wife’s rights to donate the embryos to an infertile couple.

But the Tennessee case did not involve a contract signed by husband and wife as the Kass case does, and Mrs. Kass’ attorney has said it is the first of its kind in the country.

The case could have an effect on the estimated 20,000 frozen embryos subject to dispute across the country. In all, there are estimated to be about 100,000 embryos in storage nationwide.

Before completing the procedure, the Kasses signed the contract indicating what they wanted to do with the eggs, known as pre-zygotes, if they did not want to go through with a pregnancy. Such a contract is recommended under voluntary guidelines issued by the American Society for Reproductive Medicine, but not mandated by law.

Chief Judge Judith Kaye cited the agreement in the decision, saying it was a ``quintessentially personal, private decision.″ It should be the couple, ``not the state and not the courts, who by their prior directive make this deeply personal life choice,″ Kaye wrote.

The Court of Appeals ruling upheld a lower state appeals court ruling. Originally, a trial judge had ruled in the woman’s favor, but that decision was overturned.

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