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The New Jersey Supreme Court, long on the vanguard of cutting bioethics issues like surrogate parenting and the right to die, took a foray into reproductive rights Tuesday, ruling that frozen human embryos may not be used for procreation without the consent of both donors. Relying on science more than precedent, the court found that a woman’s right to not procreate outweighs her ex-husband’s desire to use the embryos for a possible future pregnancy with another woman, whether or not the donors have entered a contract governing the disposition of the embryos should they not be used. And while the court found “persuasive reasons” for such an agreement, they suggested it might run afoul of New Jersey’s policy against enforcing private contracts to enter into or terminate familial relationships, enunciated in the In re Baby M surrogate parenting cases. “We believe that the better rule, and the one we adopt, is to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos,” wrote Justice Deborah Poritz for the unanimous court in J.B. v. M.B., A-9-00. Tuesday’s ruling, only the fourth by a state high court on the subject, is likely to carry weight nationally due to the New Jersey court’s reputation for being on the forefront of bioethics issues. “There have been relatively few rulings and I believe this will be used as a model by other states and courts faced with these issues,” says Lenora Lapidus, the director of the Women’s Rights Project of the American Civil Liberties Union, who filed an amicus brief on behalf of the female donor, J.B. “The New Jersey Supreme Court is one of the most respected state supreme courts in the country and it is often looked to for guidance.” “This ruling has far-reaching implications,” agrees John Mayoue, a partner at Atlanta’s Warner, Mayoue & Bates, who specializes in negotiating settlements in embryo disputes. “Courts tend to look to New Jersey’s supreme court because of its balanced and fair rulings” in such cases as Baby M and In re Quinlan, the first to permit the withdrawal of life-sustaining equipment from a patient in a vegetative state. The justices followed the reasoning of state courts in Tennessee, New York and Massachusetts in holding that the right not to reproduce trumps the right of the party seeking to use the embryos. “Her fundamental right not to procreate is irrevocably extinguished if a surrogate mother bears [her] child,” wrote Poritz. “We will not force J.B. to become a biological parent against her will.” “Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions,” wrote Poritz, citing “The Human Embryo, the Progenitors, and the State: Toward a Dynamic Theory of Status, Rights, and Research Policy”, 5 High Tech. L.J. 257 (1990). “[G]enetic ties may form a powerful bond … even if the progenitor is freed from the legal obligations of parenthood.” The ruling by its terms suggests that it very well could have come out differently had the male donor, M.B., shown that he is sterile and therefore that the frozen embryos constituted his last chance to reproduce. “M.B.’s right to procreate is not lost if he is denied an opportunity to use or donate the preembryos,” Poritz wrote. “M.B. is already a father and is able to become a father to additional children, whether through natural procreation or further in vitro fertilization. In contrast, J.B.’s right not to procreate may be lost through attempted use or through donation of the preembryos.” What forced the justices to decide the conundrum was the lack of a contract between the donors controlling the disposition of the embryos should they divorce. The parties agreed that any dispute over the embryos would be determined by the courts. The parties’ identities were sealed when the lawsuit originally was filed in Camden County, New Jersey, in 1997. After J.B. and M.B. were married in February 1992, J.B. suffered a miscarriage and they encountered difficulty conceiving a child. M.B. did not have infertility problems, but J.B. learned that she had a condition that prevented her becoming pregnant. The couple underwent in vitro fertilization in May 1995, resulting in 11 pre-embryos. Seven were cryopreserved and four were implanted in J.B., who gave birth to the couple’s only child in March 1996. However, in September 1996, the couple separated and later divorced. In cross-complaints, M.B. sought custody of the frozen embryos for possible later use if he remarried or decided to donate them to another infertile couple. J.B. objected that any child produced from the embryos would be her child, which amounted to forcing her to reproduce against her will. The trial judge and the state Appellate Division sided with J.B. CONDITIONAL CONTRACTS In Tuesday’s ruling, the New Jersey Supreme Court noted the dearth of case law and statutes to govern the care and disposition of embryos when one donor changes his or her mind and no longer wants them used for procreation. “Advances in medical technology have far outstripped the development of legal principles to resolve the inevitable disputes arising out of the new reproductive opportunities now available,” Poritz wrote. “Without guidance from the Legislature, we must consider a means by which courts can engage in a principled review of the issues presented in such cases in order to achieve a just result.” Poritz suggested the use of revocable embryo disposition agreements, which she said would satisfy public policy concerns while providing needed guidance. “[D]espite the conditional nature of the disposition provisions, in the large majority of cases the agreements will control, permitting fertility clinics and other like facilities to rely on their terms,” she wrote. “Principles of fairness dictate that agreements provided by a clinic should be written in plain language, and that a qualified clinic representative should review the terms with the parties prior to execution.” Embryo-law specialist Mayoue says legislatures or the federal government should enact statutes to regulate the growing fertility industry. “There are questions of who has veto power over the embryos’ use. Can one person be designated [as the owner] over the other party? What about if one party wants to donate them to another couple or for research? There are a tremendous number of issues that have to be dealt with.” The court managed to sidestep the most fundamental question of all: whether the frozen embryos constitute lives in being with rights of their own. The Appellate Division had ordered the embryos destroyed, to which M.B., a devout Catholic, had objected. But when the case was argued to the court in February, J.B.’s attorney, James Katz, said she did not object to having them remain at the fertility clinic as long as her ex-husband paid the storage fee. Katz, a partner at the Cherry Hill, N.J., office of Philadelphia’s Sagot, Jennings & Sigmond, was away from his office and unavailable for comment. M.B.’s attorney, Eric Spevak, a partner at Haddonfield, N.J.’s Adinolfi & Spevak, says he may appeal the ruling to the U.S. Supreme Court, though he says his client is relieved that the embryos will be preserved.

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