Oh, by the way," said Maureen Kass, as the initial consultation with her divorce lawyer, Vincent Stempel, wound to a close in June 1993. Stempel braced himself. The Kass matter had seemed simple enough—a brief marriage, little property, no children—but if a decade of practicing matrimonial law on New York's Long Island had taught him anything, it was that these four words signaled a bombshell. "Oh, by the way," Kass was saying, "I have five frozen pre-embryos in Mather Memorial Hospital, and I would like custody of them."
Thus began a five-year legal slugfest that could help settle the uncertain futures of some of the 10,000 human embryos—called pre-embryos until they attach to a mother's uterine wall—that are frozen each year in this country. The Kass case, which was argued before New York State's court of appeals on March 31, will determine the law in the state and influence it nationwide. Depending on how this once obscure divorce battle is resolved, other embryos that have outlasted the marriages that brought them into being may be put in a womb or discarded.
Maureen and her husband, Steven Kass, after failing to conceive naturally, tried numerous cycles of in vitro fertilization (IVF). Doctors would extract a dozen or so eggs from Maureen, mix them with Steven's sperm in a petri dish, insert as many as four of those that fertilized into the womb and freeze the rest for possible use later on. As Maureen spoke to Vincent Stempel, five of these embryos lay sealed in little plastic vials inside a canister in a hospital lab in Port Jefferson, N.Y. And there they remain.
The three-foot canister, which looks something like a propane tank for a barbecue grill, is filled with liquid nitrogen at -320°F—colder than the temperature on the planet Saturn. Theoretically, the embryos could remain frozen, then be thawed out none the worse for wear. But if time stands still for the frozen cells, it does not for would-be mothers. The success rate for IVF declines markedly among women over 40, and Maureen, who is 40, wants to implant the embryos in her womb before the sun sets on another day. But Steven, adamantly opposed to having his ex-wife bear his children, wants the embryos donated for research and then disposed of—as he insists Maureen agreed in writing to do in the event of divorce. But the signed document is legally ambiguous, and Maureen insists they merely agreed to let a judge decide who gets the embryos.
Steven Kass, an engineer in his family's manufacturing and engineering company, and Maureen Kent, then an accounting-office secretary, met at a party. Each saw the other as a potential partner in parenthood from their first date, a March 1987 stroll along the boardwalk at Jones Beach on Long Island. Maureen recalls her first impressions of Steven: "I thought he was cute. He was very smart, educated, very responsible, reliable, great sense of humor. He was a just all-around nice person." Steven was delighted that Maureen, a tiny slip of a woman with big blonde hair, was "very quiet and family-oriented." Within a month they were talking marriage and children. They wed on the Fourth of July—Maureen's favorite holiday next to Christmas—in 1988. The bridesmaids wore blue, the maid of honor red; tables were decked with little American flags, and the cake was topped with sparklers.
"Right away we tried to have children," recalls Steven, now 37. "But we ran into this problem." Maureen, like thousands of daughters born to women who had been prescribed the drug DES in the 1950s to prevent miscarriage, had suffered damage to her own reproductive organs while in utero. For three years, IVF ruled the Kasses' lives. Basal body thermometers and dutiful sex on schedule gave way to body-bloating hormone shots and sperm donation into cups. On the fertility clinic's walls hung a series of annual photos showing Drs. David Kreiner and Daniel Kenigsberg surrounded by an ever-larger harvest of youngsters. Like Pied Pipers, the handsome young doctors had called all these children forth from wherever they'd been hiding. But the Kasses' baby would not come.
Five retrieval and nine transfer procedures, at a total cost of $75,000, produced one pregnancy, which ended in a miscarriage after a couple of weeks. And the medicalization of their marriage took its toll on the Kasses. The bright lights and stainless steel of the procedure rooms put a hard edge on their embraces, and the warmth and comfort slipped away. Maureen moved back to her mother's Long Island home.
The divorce was finalized in 1994. She kept the Bavarian china, he the Waterford vase. They split up the cats: Princess left with her and Goldie stayed with him. She took back her easy-listening albums, and he held onto his hard rock. But they could not agree about those five frozen embryos. Thus did Steven and Maureen become Kass v. Kass.
Maureen argues that Steven, having helped conceive the embryos, has no right to unconceive them. Trial court judge Angelo Roncallo agreed. He based his decision on the U.S. Supreme Court's 1976 holding that a woman, and not her husband, has the right to decide whether or not to get an abortion, "as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy."
But the judge ordered that the embryos stay where they are while Steven appealed the decision (and paid the $50-a-month embryo-storage fee). Steven's lawyer, Linda Armatti-Epstein, argues that a wife ordinarily gets the final say on whether to continue gestation only because she has the right to control her own body and that right should not extend to a can of liquid nitrogen. Moreover, she insists, Maureen's right to procreate would not be violated if the embryos are discarded, since she could try to get pregnant with someone else's sperm. On the other hand, says the lawyer, Steven's right not to procreate would be lost if his ex-wife carries the embryos to term. And even though Maureen has promised not to seek child support, state law would hold him financially responsible for his offspring.
The suggestion that she go through the painful process of egg collection all over again deeply offends Maureen. "They're my eggs," she says of the frozen embryos. "I went through an awful lot for them, and Steven agreed to this. I don't think you should go around fertilizing eggs and then say, 'Well, things didn't work out, let's just go destroy them.' "
Steven won in an intermediate appellate court, but Maureen has taken the case up to the court of appeals. If the court of appeals finds that Steven and Maureen did not enter into a binding agreement as to how to dispose of the embryos, the case could be sent back to a lower court for a hearing to balance the Kasses' conflicting rights. A leading authority in the field of reproductive rights, University of Texas law professor John A. Robertson, suggests that a spouse should not be forced into procreating unless the frozen embryos represent the other spouse's last chance for parenthood. In a case such as the Kasses', "the question becomes how difficult would it be for her to get other embryos," Robertson says. "If she's medically able to go through IVF again...you probably could ask her to do it."
The court of appeals ruling could come any time. Maureen, meanwhile, imagines her future this way: "Raising a child, being happy, having the child be happy." And Steven still hopes to get married again and have a family. "My plans haven't changed," he says. "It's just that I have to be a little more careful."
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