Massachusetts: The Contemporaneous Mutual Consent Approach
Under this theory, both parties must agree to all decisions as to the disposition, donation, or implantation of embryos at the actual time when they are making the decision to implant, donate or discard excess embryos, rather than only before beginning IVF treatment in the first place. Otherwise, the embryos will simply remain frozen until a decision is reached.
In A.Z. v. B.Z., for example, a married couple conceived a child through IVF, and the remaining embryos from the process were frozen for potential future use. The parties separated several years later, and the husband filed a motion to obtain an injunction against the wife from using the remaining embryos.
Despite the existence of several consent forms signed at the time of the IVF process, the court held that they refused to enforce any such agreement that would compel one party to become a parent against his or her will. The court describes this as “forced procreation,” which would violate public policy and is therefore “not amendable to judicial enforcement.”
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