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Fertilized Eggs To Be Donated

May 7, 1998

ALBANY, N.Y. (AP) _ Five frozen, fertilized human eggs that have been in legal limbo since the couple who created them divorced must be donated to research despite the woman’s desire to use them to have children, the state’s highest court ruled Thursday.

The Court of Appeals’ unanimous decision upholds the contract Maureen and Steven Kass signed before completing in-vitro fertilization in 1993.

The couple split up after the attempt to have a child failed. Mrs. Kass then decided she wanted to use her eggs to try to get pregnant, saying she had never given up hope of having children.

Her husband objected, saying he did not want to have a child by his former wife, and Mrs. Kass sued.

For years, courts in various states have been wrestling with the question of who owns frozen embryos after a divorce, but Thursday’s decision was the nation’s first based on a contract signed by the couple involved, said Mrs. Kass’s lawyer, Vincent Stempel.

Stempel said no decision had been made on whether to appeal.

``We’re bitterly disappointed,″ he said. ``Mrs. Kass wanted to have a child.″

Steven Kass’ attorney did not immediately return phone calls.

Maureen Kass, 39, could not have children naturally because, while in her mother’s womb, she was exposed to the drug DES _ which is known to cause serious problems during pregnancy and delivery. In 1993, Mrs. Kass’s sister agreed to be impregnated with one of the artificially inseminated eggs, but the procedure failed.

The contract the Kasses signed, which said they wanted the eggs donated to research and ultimately destroyed, is not mandated by law but is recommended by the American Society for Reproductive Medicine

Dr. Benjamin Younger, the executive director of the Birmingham, Ala.-based organization, said Thursday’s ruling should persuade couples going through test-tube fertilization to decide first what they want done with the eggs if they separate.

``When you’re sitting there as a couple wanting desperately to have a child, it’s hard to think at that time that you’re going to get a divorce,″ Younger said.

A trial judge originally ruled in Mrs. Kass’s favor, but that decision was overturned on appeal and eventually made its way to the high court.

It should be the couple involved, ``not the state and not the courts, who by their prior directive make this deeply personal life choice,″ wrote Chief Judge Judith Kaye.

In the only other case to reach a state’s highest court, the Tennessee Supreme Court ruled in 1992 that the husband’s right not to have children outweighed his wife’s right to donate the embryos to an infertile couple. But that case did not involve a contract signed by the couple. The decision was upheld by the U.S. Supreme Court.

While exact figures are unavailable, experts estimate there are 20,000 frozen embryos subject to dispute across the country. In all, there are estimated to be 100,000 embryos in storage nationwide.

Thursday’s decision is not likely to scare couples away from in-vitro fertilization, said Dr. Jamie Griffo, director of reproductive endocrinology at New York University Medical Center.

``Nobody goes to in-vitro fertilization thinking they’re going to go through a divorce. This is just an unfortunate situation,″ Griffo said. ``But you can’t have somebody becoming an unconsenting parent. That’s just not right.″

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