[708] Eric S. Spevak and Andrew L. Rochester, Haddonfield, argued the cause for appellant (Adinolfi and Spevak, attorneys; Mr. Spevak, Mr. Rochester, Sandra E. Yampell and Richard M. Chiumento, Haddonfield, on the briefs).

James Katz argued the cause for respondent (Sagot, Jennings & Sigmond, Cherry Hill, attorneys).

Lenora M. Lapidus, Former Legal Director, submitted a letter in lieu of brief on behalf of amici curiae, American Civil Liberties Union of New Jersey, American Society for Reproductive Medicine and RESOLVE (J.C. Salyer, Staff Attorney, attorney).

Russell J. Passamano, Morristown, submitted a brief on behalf of amicus curiae LifeNet, Inc.

The opinion of the Court was delivered by PORITZ, C.J.

In this case, a divorced couple disagree about the disposition of seven preembryos^[1] that remain in storage after the couple, during their marriage, undertook in vitro fertilization procedures. We must first decide whether the husband and wife have entered into an enforceable contract that is now determinative on the disposition issue. If not, we must consider how such conflicts should be resolved by our courts.

Although the reproductive technology to accomplish in vitro fertilization has existed since the 1970s, there is little caselaw to guide us in our inquiry.

[709] I

A

J.B. and M.B. were married in February 1992. After J.B. suffered a miscarriage early in the marriage, the couple encountered difficulty conceiving a child and sought medical advice from the Jefferson Center for Women's Specialties. Although M.B. did not have infertility problems, J.B. learned that she had a condition that prevented her from becoming pregnant. On that diagnosis, the couple decided to attempt in vitro fertilization at the Cooper Center for In Vitro Fertilization, P.C. (the Cooper Center).

The in vitro fertilization procedure requires a woman to undergo a series of hormonal injections to stimulate the production of mature oocytes^[2] (egg cells or ova). The medication causes the ovaries to release multiple egg cells during a menstrual cycle rather than the single egg normally produced. The egg cells are retrieved from the woman's body and examined by a physician who evaluates their quality for fertilization. Egg cells ready for insemination are then combined with a sperm sample and allowed to incubate for approximately twelve to eighteen hours. Successful fertilization results in a zygote^[3] that develops into a four- to eight-cell preembryo. At that stage, the preembryos are either returned to the woman's uterus for implantation or cryopreserved at a temperature of -196 C and stored for possible future use.

A limited number of preembryos are implanted at one time to reduce the risk of a multiple pregnancy. Cryopreservation of unused preembryos reduces, and may eliminate, the need for further ovarian stimulation and egg retrieval, thereby reducing the medical risks and costs associated with both the hormone regimen and the surgical removal of egg cells from the woman's body. Cryopreservation also permits introduction of the preembryos into the uterus at the optimal time in the natural cycle for pregnancy. Egg cells must be fertilized before undergoing cryopreservation because unfertilized cells are difficult to preserve and, once preserved, are difficult to fertilize.

The Cooper Center's consent form describes the procedure:

IVF [or in vitro fertilization] will be accomplished in a routine fashion: that is, ovulation induction followed by egg recovery, insemination, fertilization, embryo development and embryo transfer of up to three or four embryos in the stimulated cycle. With the couple's consent, any "extra" embryos beyond three or four will be cryopreserved according to our freezing protocol and stored at -196C. Extra embryos, upon thawing, must meet certain criteria for viability before being considered eligible for transfer. These criteria require that a certain minimum number of cells composing the embryo survive the freeze-thaw process. These extra embryos will be transferred into the woman's uterus in one or more future menstrual cycles for the purpose of establishing a normal pregnancy. The physicians and embryologists on the IVF team will be responsible for determining the appropriate biological conditions and the timing for transfers of cryopreserved embryos.

The consent form also contains language discussing the control and disposition of the preembryos:

[710] The control and disposition of the embryos belongs to the Patient and her Partner. You will be asked to execute the attached legal statement regarding control and disposition of cryopreserved embryos. The IVF team will not be obligated to proceed with the transfer of any cryopreserved embryos if experience indicates the risks outweigh the benefits.

Before undertaking in vitro fertilization in March 1995, the Cooper Center gave J.B. and M.B. the consent form with an attached agreement for their signatures. The agreement states, in relevant part:

I, J.B. (patient), and M.B. (partner), agree that all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances:

1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues....

B

The in vitro fertilization procedure was carried out in May 1995 and resulted in eleven preembryos. Four were transferred to J.B. and seven were cryopreserved. J.B. became pregnant, either as a result of the procedure or through natural means, and gave birth to the couple's daughter on March 19, 1996. In September 1996, however, the couple separated, and J.B. informed M.B. that she wished to have the remaining preembryos discarded. M.B. did not agree.

J.B. filed a complaint for divorce on November 25, 1996, in which she sought an order from the court "with regard to the eight^[4] frozen embryos." In a counterclaim filed on November 24, 1997, M.B. demanded judgment compelling his wife "to allow the (8) eight frozen embryos currently in storage to be implanted or donated to other infertile couples." J.B. filed a motion for summary judgment on the preembryo issue in April 1998 alleging, in a certification filed with the motion, that she had intended to use the preembryos solely within her marriage to M.B. She stated:

Defendant and I made the decision to attempt conception through in vitro fertilization treatment. Those decisions were made during a time when defendant and I were married and intended to remain married. Defendant and I planned to raise a family together as a married couple. I endured the in vitro process and agreed to preserve the preembryos for our use in the context of an intact family.

J.B. also certified that "[t]here were never any discussions between the Defendant and I regarding the disposition of the frozen embryos should our marriage be dissolved."

M.B., in a cross-motion filed in July 1998, described his understanding very differently. He certified that he and J.B. had agreed prior to undergoing the in vitro fertilization procedure that any unused preembryos would not be destroyed, but would be used by his wife or donated to infertile couples. His certification stated:

Before we began the I.V.F. treatments, we had many long and serious discussions regarding the process and the moral and ethical repercussions. For me, as a Catholic, the I.V.F. procedure itself posed a dilemma. We discussed this issue extensively and had agreed that no matter what happened the eggs would be either utilized by us or by other infertile couples. In fact, the option to donate [the preembryos] to infertile [711] couples was the Plaintiff's idea. She came up with this idea because she knew of other individuals in her work place who were having trouble conceiving.

M.B.'s mother, father, and sister also certified that on several occasions during family gatherings J.B. had stated her intention to either use or donate the preembryos.

The couple's final judgment of divorce, entered in September 1998, resolved all issues except disposition of the preembryos. Shortly thereafter, the trial court granted J.B.'s motion for summary judgment on that issue. The court found that the reason for the parties' decision to attempt in vitro fertilization—to create a family as a married couple—no longer existed. J.B. and M.B. had become parents and were now divorced. Moreover, M.B. was not infertile and could achieve parenthood in the future through natural means. The court did not accept M.B.'s argument that the parties undertook the in vitro fertilization procedure to "create life," and found no need for further fact finding on the existence of an agreement between them, noting that there was no written contract memorializing the parties' intentions. Because the husband was "fully able to father a child," and because he sought control of the preembryos "merely to donate them to another couple," the court concluded that the wife had "the greater interest and should prevail."

The Appellate Division affirmed. J.B. v. M.B., 331 N.J.Super. 223, 751 A.2d 613 (2000). The court noted the inconsistency between the trial court's finding that "the parties engaged in IVF to create their child within the context of their marriage" and M.B.'s claim that the couple had entered into an agreement to donate or use, and not to destroy, the preembryos. Id. at 228, 751 A.2d 613. Before the Appellate Division, the husband argued that his constitutional right to procreate had been violated by the ruling of the trial court and sought a remand to establish the parties' understanding regarding the disposition of the preembryos. Ibid.

The Appellate Division understood this case to "involv[e] an attempt to enforce an alleged agreement to use embryos to create a child." Id. at 231, 751 A.2d 613. It initially examined that "attempt" in the context of two fundamental rights, "the right to procreate and the right not to procreate," citing Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), and Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-77 (1973), among other cases. J.B., supra, 331 N.J.Super. at 231-32, 751 A.2d 613. The court found that, on the facts presented, the conflict between those rights was "more apparent than real." Id. at 232, 751 A.2d 613. It observed that destruction of the preembryos would not seriously impair M.B.'s constitutional right to procreate since "he retains the capacity to father children." Ibid. In contrast, allowing donation or use of the preembryos would impair J.B.'s right not to procreate "[e]ven if [she was] relieved of the financial and custodial responsibility for her child" because she would then have been forced to allow strangers to raise that child. Ibid. In those circumstances, and assuming "that the Fourteenth Amendment applies," the court found no impairment of the husband's constitutional rights. Ibid.

Nonetheless, the court chose not to decide this case on constitutional grounds. Id. at 233, 751 A.2d 613. In its view, whether court enforcement of the alleged agreement would constitute state action under the Fourteenth Amendment was unclear, and resolution of the constitutional issue was not necessary to dispose of the litigation. Id. at 233-34, 751 A.2d 613. The court concluded "that a contract to [712] procreate is contrary to New Jersey public policy and is unenforceable." Id. at 234, 751 A.2d 613. In affirming the judgment of the trial court in favor of J.B., the panel considered the parties' views and the trial court's opinion, and determined that destruction of the preembryos was required. Id. at 235, 751 A.2d 613.

We granted certification, 165 N.J. 530, 760 A.2d 783 (2000), and now modify and affirm the judgment of the Appellate Division.

C

M.B. contends that the judgment of the court below violated his constitutional rights to procreation and the care and companionship of his children. He also contends that his constitutional rights outweigh J.B.'s right not to procreate because her right to bodily integrity is not implicated, as it would be in a case involving abortion. He asserts that religious convictions regarding preservation of the preembryos, and the State's interest in protecting potential life, take precedence over his former wife's more limited interests. Finally, M.B. argues that the Appellate Division should have enforced the clear agreement between the parties to give the preembryos a chance at life. He believes that his procedural due process rights have been violated because he was not given an opportunity to introduce evidence demonstrating the existence of that agreement, and because summary judgment is inappropriate in a case involving novel issues of fact and law.

J.B. argues that the Appellate Division properly held that any alleged agreement between the parties to use or donate the preembryos would be unenforceable as a matter of public policy. She contends that New Jersey has "long recognized that individuals should not be bound by agreements requiring them to enter into family relationships or [that] seek to regulate personal intimate decisions relating to parenthood and family life." J.B. also argues that in the absence of an express agreement establishing the disposition of the preembryos, a court should not imply that an agreement exists. It is J.B.'s position that requiring use or donation of the preembryos would violate her constitutional right not to procreate. Discarding the preembryos, on the other hand, would not significantly affect M.B.'s right to procreate because he is fertile and capable of fathering another child.

Lifenet, Inc. (Lifenet) and the American Civil Liberties Union of New Jersey, the American Society for Reproductive Medicine, and Resolve, a National Infertility Association (ACLU Amici), have participated as amici curiae before the Appellate Division and now before this Court. Lifenet urges the Court not to allow destruction of the preembryos. The ACLU Amici argue that, although agreements governing disposition of preembryos should be presumed to be enforceable, agreements compelling implantation violate public policy by forcing parenthood on the non-consenting donor. The ACLU Amici argue further that in the absence of an agreement the right not to procreate should, in general, outweigh the right to procreate.

II

M.B. contends that he and J.B. entered into an agreement to use or donate the preembryos, and J.B. disputes the existence of any such agreement. As an initial matter, then, we must decide whether this case involves a contract for the disposition of the cryopreserved preembryos resulting from in vitro fertilization. We begin, therefore, with the consent form provided to J.B. and M.B. by the Cooper Center. Cf. Garfinkel v. Morristown Obstetrics & [713] Gynecology, 168 N.J. 124, 135, 773 A.2d 665 (2001) (noting intent expressed in writing controls interpretation of contract); State Troopers Fraternal Assoc. v. State, 149 N.J. 38, 47, 692 A.2d 519 (1997) (noting fundamental canons of contract construction require examination of plain language of contract). That form states, among other things:

The control and disposition of the embryos belongs to the Patient and her Partner. You will be asked to execute the attached legal statement regarding control and disposition of cryopreserved embryos.

The attachment, executed by J.B. and M.B., provides further detail in respect of the parties' "control and disposition":

I, J.B. (patient), and M.B. (partner) agree that all control, direction, and ownership of our tissues will be relinquished to the IVF Program under the following circumstances:

1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues, or

2. In the event of death of both of the above named individuals, or unless provisions are made in a Will, or

3. When the patient is no longer capable of sustaining a normal pregnancy, however, the couple has the right to keep embryos maintained for up to two years before making a decision [regarding a] "host womb" or

4. At any time by our/my election which shall be in writing, or

5. When a patient fails to pay periodic embryo maintenance payment.

The consent form, and more important, the attachment, do not manifest a clear intent by J.B. and M.B. regarding disposition of the preembryos in the event of "[a] dissolution of [their] marriage." Although the attachment indicates that the preembryos "will be relinquished" to the clinic if the parties divorce, it carves out an exception that permits the parties to obtain a court order directing disposition of the preembryos. That reading is consistent with other provisions of the attachment allowing for disposition by a last will and testament "[i]n the event of death," or "by our/my election ... in writing." Clearly, the thrust of the document signed by J.B. and M.B. is that the Cooper Center obtains control over the preembryos unless the parties choose otherwise in a writing, or unless a court specifically directs otherwise in an order of divorce.

The conditional language employed in the attachment stands in sharp contrast to the language in the informed consents provided by the hospital in Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998). In Kass, the New York Court of Appeals enforced a couple's memorialized decision to donate their preembryos for scientific research when they could not agree on disposition. Id., 673 N.Y.S.2d 350, 696 N.E.2d at 182. The court found that the parties had signed an unambiguous contract to relinquish control of their preembryos to the hospital for research purposes in the event of a dispute. Id., 673 N.Y.S.2d 350, 696 N.E.2d at 181. In that case, the parties executed several forms before undergoing in vitro fertilization. Id., 673 N.Y.S.2d 350, 696 N.E.2d at 176-77. Informed Consent No. 2 stated:

In the event of divorce, we understand that legal ownership of any stored pre-zygotes^[5] must be determined in a property settlement and will be released as [714] directed by order of a court of competent jurisdiction.

[Id., 673 N.Y.S.2d 350, 696 N.E.2d at 176.]

Addendum No. 2-1 further elaborated:

In the event that we ... are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to (choose one):

Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program.

[Id., 673 N.Y.S.2d 350, 696 N.E.2d at 176-77.]

Moreover, before the parties divorced, they drafted and signed an "`uncontested divorce' agreement" indicating that their preembryos "should be disposed of [in] the manner outlined in our consent form and [neither party] will lay claim to custody of these pre-zygotes." Id., 673 N.Y.S.2d 350, 696 N.E.2d at 177.^[6]

The Kass court found that the parties had agreed to donate their preembryos for IVF research if they could not together decide on another disposition. Id., 673 N.Y.S.2d 350, 696 N.E.2d at 181. The court interpreted the provision of the consent form dealing directly with divorce to indicate only that the parties' agreement would be embodied in a document of divorce, noting that the couple had, indeed, endorsed an "`uncontested divorce' instrument" ratifying the consent forms they had signed earlier. Ibid. That holding is based on language entirely different from the language in the form in this case. Here, the parties have agreed that on the dissolution of their marriage the Cooper Center obtains control of the preembryos unless the court specifically makes another determination. Under that provision, the parties have sought another determination from the court.

M.B. asserts, however, that he and J.B. jointly intended another disposition. Because there are no other writings that express the parties' intentions, M.B. asks the Court either to remand for an evidentiary hearing on that issue or to consider his certified statement. In his statement, he claims that before undergoing in vitro fertilization the couple engaged in extensive discussions in which they agreed to use the preembryos themselves or donate them to others. In opposition, J.B. has certified that the parties never discussed the disposition of unused preembryos and that there was no agreement on that issue.

We find no need for a remand to determine the parties' intentions at the time of the in vitro fertilization process. Assuming that it would be possible to enter into a valid agreement at that time irrevocably deciding the disposition of preembryos in circumstances such as we have here, a formal, unambiguous memorialization of the parties' intentions would be required to confirm their joint determination. The parties do not contest the lack of such a writing. We hold, therefore, that J.B. and M.B. never entered into a separate binding contract providing for the disposition of the cryopreserved preembryos now in the possession of the Cooper Center.

III

In essence, J.B. and M.B. have agreed only that on their divorce the decision in respect of control, and therefore disposition, [715] of their cryopreserved preembryos will be directed by the court. In this area, however, there are few guideposts for decision-making. 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. For infertile couples, those opportunities may present the only way to have a biological family. Yet, at the point when a husband and wife decide to begin the in vitro fertilization process, they are unlikely to anticipate divorce or to be concerned about the disposition of preembryos on divorce. As they are both contributors of the genetic material comprising the preembryos, the decision should be theirs to make. See generally Davis v. Davis, 842 S.W.2d 588, 597 (Tenn.1992) (stating that donors should retain decision-making authority with respect to their preembryos), reh'g granted in part, 1992 WL 341632, at *1 (Nov. 23, 1992), and cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993); Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 83 (1999) ("Because the embryos are the products of the couple's shared procreative activity, any decision to use them should be the result of the couple's mutual choice."); cf. Paul Walter, His, Hers, or Theirs—Custody, Control, and Contracts: Allocating Decisional Authority Over Frozen Embryos, 29 Seton Hall L.Rev. 937, 959-62 (1999) (discussing approaches to disposition of preembryos, including grant of "sole authority to the biological provider(s)").

But what if, as here, the parties disagree. 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. Because the claims before us derive, in part, from concepts found in the Federal Constitution and the Constitution of this State, we begin with those concepts.

A

Both parties and the ACLU Amici invoke the right to privacy in support of their respective positions. More specifically, they claim procreational autonomy as a fundamental attribute of the privacy rights guaranteed by both the Federal and New Jersey Constitutions. Their arguments are based on various opinions of the United States Supreme Court that discuss the right to be free from governmental interference with procreational decisions. See Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362 (1972); Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, 515-16 (1965); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942).

In Skinner v. Oklahoma, supra, the Court spoke of that most "basic liberty[ ]" when rejecting, on equal protection grounds, an Oklahoma statute that required sterilization of certain repeat criminal offenders. 316 U.S. at 541, 62 S.Ct. at 1113, 86 L.Ed. at 1660. "Marriage and procreation," said Justice Douglas, "are fundamental to the very existence and survival of the race." Ibid. Later, in Griswold, supra, and Eisenstadt,supra, the Court invalidated statutes restricting use of and access to contraceptives by both married and unmarried couples, stating in Griswold that prohibitions on the use of contraceptives unconstitutionally infringe on the sanctity and privacy of the marital relationship, 381 U.S. at 485-86, 85 S.Ct. at 1682, 14 L.Ed.2d at 515-16, and, in Eisenstadt, that "[i]f the right of privacy means anything, it is the right of the individual, [716] married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child," 405 U.S. at 453, 92 S.Ct. at 1038, 31 L. Ed.2d at 362.

This Court also has recognized the fundamental nature of procreational rights. In In re Baby M, we considered a custody dispute between a father and a surrogate mother. 109 N.J. 396, 537 A.2d 1227 (1988). Although the case involved the enforceability of a surrogacy contract, the father asserted that his right to procreate supported his claim for custody of Baby M. Id. at 447-48, 537 A.2d 1227. We held that the right to procreate was not implicated by the custody battle, which dealt with parental rights after birth. Ibid. We observed, however, that "the rights of personal intimacy, of marriage, of sex, of family, of procreation ... are fundamental rights protected by both the federal and state Constitutions." Id. at 447, 537 A.2d 1227; see also In re Grady, 85 N.J. 235, 247-48, 426 A.2d 467 (1981) (recognizing that decisions in Griswold and Eisenstadt ended "any doubt about a personal right to prevent conception," and holding that "an individual's constitutional right of privacy includes the right to undergo sterilization voluntarily"); cf. Schroeder v. Perkel, 87 N.J. 53, 66, 432 A.2d 834 (1981) (allowing recovery against defendants whose negligent diagnosis deprived mother of right to choose not to conceive child with genetic defect).

Those decisions provide a framework within which disputes over the disposition of preembryos can be resolved. In Davis, supra, for example, a divorced couple could not agree on the disposition of their unused, cryopreserved preembryos. 842 S.W.2d at 589. The Tennessee Supreme Court balanced the right to procreate of the party seeking to donate the preembryos (the wife), against the right not to procreate of the party seeking destruction of the preembryos (the husband). Id. at 603. The court concluded that the husband's right would be significantly affected by unwanted parenthood "with all of its possible financial and psychological consequences." Ibid. In his case, that burden was the greater because, as a child, he had been separated from his parents after they divorced and his mother suffered a nervous breakdown. Id. at 603-04. Because of his personal experiences, the husband was "vehemently opposed to fathering a child that would not live with both parents." Id. at 604.

Against that interest, the court weighed the wife's "burden of knowing that the lengthy IVF procedures she underwent were futile, and that the preembryos to which she contributed genetic material would never become children." Ibid. Although that burden was not insignificant, the court found that it did not outweigh the father's interest in avoiding procreation. Ibid. The court held that the scales "[o]rdinarily" would tip in favor of the right not to procreate if the opposing party could become a parent through other reasonable means. Ibid.

B

We agree with the Tennessee Supreme Court that "[o]rdinarily, the party wishing to avoid procreation should prevail." Ibid. Here, the Appellate Division succinctly described the "apparent" conflict between J.B. and M.B.:

In the present case, the wife's right not to become a parent seemingly conflicts with the husband's right to procreate. The conflict, however, is more apparent than real. Recognition and enforcement of the wife's right would not seriously impair the husband's right to procreate. Though his right to procreate [717] using the wife's egg would be terminated, he retains the capacity to father children.

[J.B., supra, 331 N.J.Super. at 232, 751 A.2d 613.]

In other words, M.B.'s right to procreate is not lost if he is denied an opportunity to use or donate the preembryos. 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. Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions.^[7] See Patricia A. Martin & Martin L. Lagod, The Human Preembryo, the Progenitors, and the State: Toward a Dynamic Theory of Status, Rights, and Research Policy, 5 High Tech. L.J. 257, 290 (1990) (stating that "[g]enetic ties may form a powerful bond ... even if the progenitor is freed from the legal obligations of parenthood"). Her fundamental right not to procreate is irrevocably extinguished if a surrogate mother bears J.B.'s child. We will not force J.B. to become a biological parent against her will.

C

The court below "conclude[d] that a contract to procreate is contrary to New Jersey public policy and is unenforceable." 331 N.J.Super. at 234, 751 A.2d 613. That determination follows the reasoning of the Massachusetts Supreme Judicial Court in A.Z. v. B.Z., wherein an agreement to compel biological parenthood was deemed unenforceable as a matter of public policy. 431 Mass. 150, 725 N.E.2d 1051, 1057-58 (2000). The Massachusetts court likened enforcement of a contract permitting implantation of preembryos to other contracts to enter into familial relationships that were unenforceable under the laws of Massachusetts, i.e., contracts to marry or to give up a child for adoption prior to the fourth day after birth. Id., 431 Mass. 150, 725 N.E.2d at 1058. In a similar vein, the court previously had refused to enforce a surrogacy contract without a reasonable waiting period during which the surrogate mother could revoke her consent, and a contract to abandon or to prevent marriage. Id., 431 Mass. 150, 725 N.E.2d at 1059. Likewise, the court declined to enforce a contract that required an individual to become a parent. Id., 431 Mass. 150, 725 N.E.2d at 1058.

As the Appellate Division opinion in this case points out, the laws of New Jersey also evince a policy against enforcing private contracts to enter into or terminate familial relationships. 331 N.J.Super. at 234-35, 751 A.2d 613. New Jersey has, by statute, abolished the cause of action for breach of contract to marry. [718] N.J.S.A. 2A:23-1. Private placement adoptions are disfavored, Sees v. Baber, 74 N.J. 201, 217, 377 A.2d 628 (1977), and may be approved over the objection of a parent only if that parent has failed or is unable to perform "the regular and expected parental functions of care and support of the child." N.J.S.A. 9:3-46; see N.J.S.A. 9:3-48 (stating statutory requirements for private placement adoption).

That public policy also led this Court to conclude in Baby M, supra, that a surrogacy contract was unenforceable. 109 N.J. at 433-34, 537 A.2d 1227. We held that public policy prohibited a binding agreement to require a surrogate, there the biological mother, to surrender her parental rights. Id. at 411, 537 A.2d 1227. The contract in Baby M provided for a $10,000 payment to the surrogate for her to be artificially inseminated, carry the child to term, and then, after the child's birth, relinquish parental rights to the father and his wife. Id. at 411-12, 537 A.2d 1227. The surrogate mother initially surrendered the child to the father, but subsequently reconsidered her decision and fled with Baby M. Id. at 414-15, 537 A.2d 1227. In an action by the father to enforce the surrogacy contract, we held that the contract conflicted with "(1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions." Id. at 423, 537 A.2d 1227. Our decision was consistent with the policy expressed earlier in Sees, supra, that consent to terminate parental rights was revocable in all but statutorily approved circumstances. 74 N.J. at 212, 377 A.2d 628.^[8]

Enforcement of a contract that would allow the implantation of preembryos at some future date in a case where one party has reconsidered his or her earlier acquiescence raises similar issues. If implantation is successful, that party will have been forced to become a biological parent against his or her will. We note disagreement on the issue both among legal commentators and in the limited caselaw on the subject. Kass, supra, held that "[a]greements between progenitors, or gamete donors, regarding disposition of their prezygotes should generally be presumed valid and binding, and enforced in a dispute between them...." 673 N.Y.S.2d 350, 696 N.E.2d at 180. The New York court emphasized that such agreements would "avoid costly litigation," "minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal private decision."^[9]Ibid.; see also New York State Task Force on Life and the Law, Executive Summary of Assisted Reproductive [719] Technologies: Analysis and Recommendations for Public Policy (last modified Aug. 1999) (stating that "[i]ndividuals or couples who have excess embryos no longer desired for assisted reproduction have a strong interest in controlling the fate of those embryos"); John A. Robertson, Prior Agreements For Disposition of Frozen Embryos, 51 Ohio St. L.J. 407, 409-18 (1990) (arguing that enforcement of advance directives maximizes reproductive freedom, minimizes disputes, and provides certainty to couples and in vitro fertilization programs); Peter E. Malo, Deciding Custody of Frozen Embryos: Many Eggs Are Frozen But Who Is Chosen?, 3 DePaul J. Health Care L. 307, 332 (2000) (favoring mandatory preembryo disposition agreements). Yet, as discussed above, the Massachusetts Supreme Judicial Court as well as our Appellate Division have declared that when agreements compel procreation over the subsequent objection of one of the parties, those agreements are violative of public policy. A.Z., supra, 725 N.E.2d at 1057-58; J.B., supra, 331 N.J.Super. at 234, 751 A.2d 613; cf. Coleman, supra, 84 Minn. L.Rev. at 83-84 (suggesting that party objecting to implantation should prevail against infertile party seeking use of preembryos).

We recognize that persuasive reasons exist for enforcing preembryo disposition agreements. Both the Kass and Davis decisions pointed out the benefits of enforcing agreements between the parties. See Kass, supra, 673 N.Y.S.2d 350, 696 N.E.2d at 179 (noting "need for clear, consistent principles to guide parties in protecting their interests and resolving their disputes"); Davis, supra, 842 S.W.2d at 597 (discussing benefit of guidance to parties undertaking in vitro fertilization procedures). We also recognize that in vitro fertilization is in widespread use, and that there is a need for agreements between the participants and the clinics that perform the procedure. 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.

The public policy concerns that underlie limitations on contracts involving family relationships are protected by permitting either party to object at a later date to provisions specifying a disposition of preembryos that that party no longer accepts. Moreover, despite 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. Only when a party affirmatively notifies a clinic in writing of a change in intention should the disposition issue be reopened. 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. Agreements should not be signed in blank, as in A.Z., supra, 725 N.E.2d at 1057, or in a manner suggesting that the parties have not given due consideration to the disposition question. Those and other reasonable safeguards should serve to limit later disputes.

Finally, if there is disagreement as to disposition because one party has reconsidered his or her earlier decision, the interests of both parties must be evaluated. See supra at 716-17. Because ordinarily the party choosing not to become a biological parent will prevail, we do not anticipate increased litigation as a result of our decision. In this case, after having [720] considered that M.B. is a father and is capable of fathering additional children, we have affirmed J.B.'s right to prevent implantation of the preembryos. We express no opinion in respect of a case in which a party who has become infertile seeks use of stored preembryos against the wishes of his or her partner, noting only that the possibility of adoption also may be a consideration, among others, in the court's assessment.

IV

Under the judgment of the Appellate Division, the seven remaining preembryos are to be destroyed. It was represented to us at oral argument, however, that J.B. does not object to their continued storage if M.B. wishes to pay any fees associated with that storage. M.B. must inform the trial court forthwith whether he will do so; otherwise, the preembryos are to be destroyed.

The judgment of the Appellate Division is affirmed as modified.

VERNIERO, J., concurring.

I join in the disposition of this case and in all but one aspect of the Court's opinion. I do not agree with the Court's suggestion, in dicta, that the right to procreate may depend on adoption as a consideration. Ante at 720.

I also write to express my view that the same principles that compel the outcome in this case would permit an infertile party to assert his or her right to use a preembryo against the objections of the other party, if such use were the only means of procreation. In that instance, the balance arguably would weigh in favor of the infertile party absent countervailing factors of greater weight. I do not decide that profound question today, and the Court should not decide it or suggest a result, because it is absent from this case.

Justice ZAZZALI joins in this opinion.

ZAZZALI, J., concurring.

I join in the Court's opinion, except as noted by Justice Verniero's concurring opinion, which I also join. I write separately to note that these difficult disputes all too often prompt dire predictions. And yet, most assuredly, developing technologies will give rise to many more such controversies in the future. The resolution of those controversies depends on the amount of caution, compassion, and common sense we summon up as we balance the competing interests. The significance of those interests underscores the need for continued careful and deliberate decisionmaking, infused with equity, in this developing jurisprudence.

For Affirmance as Modified Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI—7.

Opposed—None.

[1] A preembryo is a fertilized ovum (egg cell) up to approximately fourteen days old (the point when it implants in the uterus). The American Heritage Stedman's Medical Dictionary 667 (1995). Throughout this opinion, we use the term "preembryo," rather than "embryo," because preembryo is technically descriptive of the cells' stage of development when they are cryopreserved (frozen).

[2] Oocytes are cells from which an egg or ovum develops. Id. at 578.

[3] A zygote is a fertilized ovum before it undergoes cell division. Id. at 906.

[4] As noted above, seven had actually been cryopreserved.

[5] The term "pre-zygote" is used in the forms and in the opinion of the New York court where this opinion uses the term "preembryo."

[6] Although the agreement was never finalized, it was accepted by the New York court as "reaffirm[ing] the [parties'] earlier understanding...." Id. at 181.

[7] The legal consequences for J.B. also are unclear. See N.J.A.C. 8:2-1.4(a) (stating "the woman giving birth shall be recorded as a parent"). We note without comment that a recent case before the Chancery Division in Bergen County concluded that seventy-two hours must pass before a non-biological surrogate mother may surrender her parental rights and the biological mother's name may be placed on the birth certificate. A.H.W. v. G.H.B., 339 N.J.Super. 495, 505, 772 A.2d 948 (2000). In Arizona, an appellate court determined that a statute allowing a biological father but not a biological mother to prove paternity violated the Equal Protection Clause. Soos v. Superior Court, 182 Ariz. 470, 897 P.2d 1356, 1361 (1994). In California, the legal mother is the person who "intended to bring about the birth of a child that she intended to raise as her own." Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776, 782 (1993), cert. denied, 510 U.S. 874, 114 S.Ct. 206, 126 L.Ed.2d 163, and cert. dismissed, Baby Boy J. v. Johnson, 510 U.S. 938, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993).

[8] Currently, a minority of states have passed legislation addressing in vitro fertilization. See, e.g., Cal.Penal Code § 367g (West 1999) (permitting use of preembryos only pursuant to written consent form); Fla. Stat. ch. 742.17 (1997) (establishing joint decision-making authority regarding disposition of preembryos); La.Rev.Stat. Ann. §§ 121-33 (West 1991) (establishing fertilized human ovum as biological human being that cannot be intentionally destroyed); Okla. Stat. Ann. tit. 10, § 556 (West 2001) (requiring written consent for embryo transfer); Tex. Family Code Ann. § 151.103 (West 1996) (establishing parental rights over child resulting from preembryo).

[9] The Supreme Court of Tennessee, in dicta, also stated "that an agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors." Davis, supra, 842 S.W.2d at 597.

Vincent F. Stempel, Garden City, and Lisa Ann Spero for appellant.

Linda T. Armatti-Epstein, Mineola, for respondent.

Yueh-ru Chu, New York City, and Donna Lieberman for New York Civil Liberties Union, amicus curiae.

Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.

[556] Chief Judge KAYE.

Although in vitro fertilization (IVF) procedures are now [557] more than two decades old and in wide use, this is the first such dispute to reach our Court. Specifically in issue is the disposition of five frozen, stored pre-embryos, or "pre-zygotes,"^[1] created five years ago, during the parties' marriage, to assist them in having a child. Now divorced, appellant (Maureen Kass) wants the pre-zygotes implanted, claiming this is her only chance for genetic motherhood; respondent (Steven Kass) objects to the burdens of unwanted fatherhood, claiming that the parties agreed at the time they embarked on the effort that in the present circumstances the pre-zygotes would be donated to the IVF program for approved research purposes. Like the two-Justice plurality at the Appellate Division, we conclude that the parties' agreement providing for donation to the IVF program controls. The Appellate Division order should therefore be affirmed.

Facts

Appellant and respondent were married on July 4, 1988, and almost immediately began trying to conceive a child. While appellant believed that, owing to prenatal exposure to diethylstilbestrol (DES) she might have difficulty carrying a pregnancy to term, her condition in fact was more serious — she failed to become pregnant. In August 1989, the couple turned to John T. Mather Memorial Hospital in Port Jefferson, Long Island and, after unsuccessful efforts to conceive through artificial insemination, enrolled in the hospital's IVF program.

Typically, the IVF procedure begins with hormonal stimulation of a woman's ovaries to produce multiple eggs. The eggs are then removed by laparoscopy or ultrasound-directed needle aspiration and placed in a glass dish, where sperm are introduced. Once a sperm cell fertilizes the egg, this fusion — or pre-zygote — divides until it reaches the four- to eight-cell stage, after which several pre-zygotes are transferred to the woman's uterus by a cervical catheter. If the procedure succeeds, an embryo will attach itself to the uterine wall, differentiate and develop into a fetus. As an alternative to immediate implantation, pre-zygotes may be cryopreserved indefinitely in liquid nitrogen for later use. Cryopreservation serves to reduce both medical and physical costs because eggs do not have to be retrieved with each attempted implantation, and delay may actually improve the chances of pregnancy. At the same time, [558] the preservation of "extra" pre-zygotes — those not immediately implanted — allows for later disagreements, as occurred here.

Beginning in March 1990, appellant underwent the egg retrieval process five times and fertilized eggs were transferred to her nine times. She became pregnant twice — once in October 1991, ending in a miscarriage and again a few months later, when an ectopic pregnancy had to be surgically terminated.

Before the final procedure, for the first time involving cryopreservation, the couple on May 12, 1993 signed four consent forms provided by the hospital. Each form begins on a new page, with its own caption and "Patient Name." The first two forms, "GENERAL INFORMED CONSENT FORM NO. 1: IN VITRO FERTILIZATION AND EMBRYO TRANSFER" and "ADDENDUM NO. 1-1," consist of 12 single-spaced typewritten pages explaining the procedure, its risks and benefits, at several points indicating that, before egg retrieval could begin, it was necessary for the parties to make informed decisions regarding disposition of the fertilized eggs. ADDENDUM NO. 1-1 concludes as follows:

"We understand that it is general IVF Program Policy, as medically determined by our IVF physician, to retrieve as many eggs as possible and to inseminate and transfer 4 of those mature eggs in this IVF cycle, unless our IVF physician determines otherwise. It is necessary that we decide * * * [now] how excess eggs are to be handled by the IVF Program and how many embryos to transfer. We are to indicate our choices by signing our initials where noted below.

"1. We consent to the retrieval of as many eggs as medically determined by our IVF physician. If more eggs are retrieved than can be transferred during this IVF cycle, we direct the IVF Program to take the following action (choose one):

"(a) The excess eggs are to be inseminated and cryopreserved for possible use by us during a later IVF cycle. We understand that our choice of this option requires us to complete an additional Consent Form for Cryopreservation" (emphasis in original).

The "Additional Consent Form for Cryopreservation," a seven-page, single-spaced typewritten document, is also in two parts. The first, "INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES," provides:

[559] "III. Disposition of Pre-Zygotes.

"We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage. * * *

"The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes. THESE IMPORTANT DECISIONS MUST BE DISCUSSED WITH OUR IVF PHYSICIAN AND OUR WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO. 2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH THE IVF PROGRAM" (emphasis in original).

The second part, titled "INFORMED CONSENT FORM NO. 2 — ADDENDUM NO. 2-1: CRYOPRESERVATIONSTATEMENT OF DISPOSITION," states:

"We understand that it is IVF Program Policy to obtain our informed consent to the number of prezygotes which are to be cryopreserved and to the disposition of excess cryopreserved pre-zygotes. We are to indicate our choices by signing our initials where noted below.

"1. We consent to cryopreservation of all prezygotes which are not transferred during this IVF cycle for possible use * * * by us in a future IVF cycle. * * *

"2. In the event that we no longer wish to initiate a [560] pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF program to (choose one): * * *

"(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program" (emphasis in original).

On May 20, 1993, doctors retrieved 16 eggs from appellant, resulting in nine pre-zygotes. Two days later, four were transferred to appellant's sister, who had volunteered to be a surrogate mother, and the remaining five were cryopreserved. The couple learned shortly thereafter that the results were negative and that appellant's sister was no longer willing to participate in the program. They then decided to dissolve their marriage. The total cost of their IVF efforts exceeded $75,000.

With divorce imminent, the parties themselves on June 7, 1993 — barely three weeks after signing the consents — drew up and signed an "uncontested divorce" agreement, typed by appellant, including the following:

"The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass[,] Steve Kass or anyone else will lay claim to custody of these pre-zygotes."

On June 28, 1993, appellant by letter informed the hospital and her IVF physician of her marital problems and expressed her opposition to destruction or release of the pre-zygotes.

One month later, appellant commenced the present matrimonial action, requesting sole custody of the pre-zygotes so that she could undergo another implantation procedure. Respondent opposed removal of the pre-zygotes and any further attempts by appellant to achieve pregnancy, and counter-claimed for specific performance of the parties' agreement to permit the IVF program to retain the pre-zygotes for research, as specified in ADDENDUM NO. 2-1. By stipulation dated December 17, 1993, the couple settled all issues in the matrimonial action except each party's claim with respect to the prezygotes, which was submitted to the court for determination. While this aspect of the case remained open, a divorce judgment was entered on May 16, 1994.

[561] In connection with the continuing litigation over the prezygotes, by letter dated January 9, 1995 the parties agreed that the matter should be decided on the existing record.

Supreme Court granted appellant custody of the pre-zygotes and directed her to exercise her right to implant them within a medically reasonable time. The court reasoned that a female participant in the IVF procedure has exclusive decisional authority over the fertilized eggs created through that process, just as a pregnant woman has exclusive decisional authority over a nonviable fetus, and that appellant had not waived her right either in the May 12, 1993 consents or in the June 7, 1993 "uncontested divorce" agreement.

While a divided Appellate Division reversed that decision (235 AD2d 150), all five Justices unanimously agreed on two fundamental propositions. First, they concluded that a woman's right to privacy and bodily integrity are not implicated before implantation occurs. Second, the court unanimously recognized that when parties to an IVF procedure have themselves determined the disposition of any unused fertilized eggs, their agreement should control.

The panel split, however, on the question whether the agreement at issue was sufficiently clear to control disposition of the pre-zygotes. According to the two-Justice plurality, the agreement unambiguously indicated the parties' desire to donate the pre-zygotes for research purposes if the couple could not reach a joint decision regarding disposition. The concurring Justice agreed to reverse but found the consent fatally ambiguous. In his view, but for the most exceptional circumstances, the objecting party should have a veto over a former spouse's proposed implantation, owing to the emotional and financial burdens of compelled parenthood. A fact-finding hearing would be authorized only when the party desiring parenthood could make a threshold showing of no other means of achieving genetic or adoptive parenthood, which was not shown on this stipulated record.

While agreeing with the concurrence that the informed consent document was ambiguous, the two-Justice dissent rejected a presumption in favor of either party and instead concluded that the fate of the pre-zygotes required a balancing of the parties' respective interests and burdens, as well as their personal backgrounds, psychological makeups, financial and physical circumstances. Factors would include appellant's independent ability to support the child and the sincerity of [562] her emotional investment in this particular reproductive opportunity, as well as the burdens attendant upon a respondent's unwanted fatherhood and his motivations for objecting to parenthood. Finding that the record was insufficient to permit a fair balancing, and that the parties' January 9, 1995 stipulation that there would be no further submissions violated public policy because it precluded full review, the dissent would remit the case to the trial court for a full hearing.

We now affirm, agreeing with the plurality that the parties clearly expressed their intent that in the circumstances presented the pre-zygotes would be donated to the IVF program for research purposes.

Analysis

A. The Legal Landscape Generally. We begin analysis with a brief description of the broader legal context of this dispute. In the past two decades, thousands of children have been born through IVF, the best known of several methods of assisted reproduction. Additionally, tens of thousands of frozen embryos annually are routinely stored in liquid nitrogen canisters, some having been in that state for more than 10 years with no instructions for their use or disposal (see, New York State Task Force on Life and the Law, Assisted Reproductive Technologies: Analysis and Recommendations for Public Policy, at 289 [Apr. 1998] ["Assisted Reproductive Technologies"]; Caplan, Due Consideration: Controversy in the Age of Medical Miracles, at 63 [1998]). As science races ahead, it leaves in its trail mind-numbing ethical and legal questions (see generally, Robertson, Children of Choice: Freedom and the New Reproductive Technologies [1994] ["Children of Choice"]).

The law, whether statutory or decisional, has been evolving more slowly and cautiously. A handful of States — New York not among them — have adopted statutes touching on the disposition of stored embryos (see, e.g., Fla Stat Annot § 742.17 [couples must execute written agreement providing for disposition in event of death, divorce or other unforeseen circumstances]; NH Rev Stat Annot §§ 168-B:13 — 168-B:15, 168-B:18 [couples must undergo medical exams and counseling; 14-day limit for maintenance of ex utero pre-zygotes]; La Rev Stat Annot [563] §§ 9:121-9:133 [pre-zygote considered "juridical person" that must be implanted]).^[2]

In the case law, only Davis v Davis (842 SW2d 588, 604 [Tenn 1992], cert denied sub nom. Stowe v Davis, 507 US 911) attempts to lay out an analytical framework for disputes between a divorcing couple regarding the disposition of frozen embryos (see also, York v Jones, 717 F Supp 421 [ED Va]; Del Zio v Columbia Presbyt. Hosp., 1978 US Dist LEXIS 14450 [US Dist Ct, SD NY, Apr. 12, 1978, 74 Civ 3588]; AZ v BZ, Mass Probate Ct, Mar. 25, 1996). Having declared that embryos are entitled to "special respect because of their potential for human life" (842 SW2d at 597, supra), Davis recognized the procreative autonomy of both gamete providers, which includes an interest in avoiding genetic parenthood as well as an interest in becoming a genetic parent. In the absence of any prior written agreement between the parties — which should be presumed valid, and implemented — according to Davis, courts must in every case balance these competing interests, each deserving of judicial respect. In Davis itself, that balance weighed in favor of the husband's interest in avoiding genetic parenthood, which was deemed more significant than the wife's desire to donate the embryos to a childless couple.

Although statutory and decisional law are sparse, abundant commentary offers a window on the issues ahead, particularly suggesting various approaches to the issue of disposition of pre-zygotes. Some commentators would vest control in one of the two gamete providers (see, e.g., Poole, Allocation of Decision-Making Rights to Frozen Embryos, 4 Am J Fam L 67 [1990] [pre-zygotes to party wishing to avoid procreation]; Andrews, The Legal Status of the Embryo, 32 Loy L Rev 357 [1986] [woman retains authority when she desires to implant]). Others would imply a contract to procreate from participation in an IVF program (see, e.g., Note, Davis v. Davis: What About Future Disputes?, 26 Conn L Rev 305 [1993]; Comment, Frozen Embryos: Towards An Equitable Solution, 46 U Miami L Rev 803 [1992]).

[564] Yet a third approach is to regard the progenitors as holding a "bundle of rights" in relation to the pre-zygote that can be exercised through joint disposition agreements (see, Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St LJ 407 [1990] ["Prior Agreements"]; Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va L Rev 437 [1990] ["Early Embryos"]). The most recent view — a "default rule" — articulated in the report of the New York State Task Force on Life and the Law, is that, while gamete bank regulations should require specific instructions regarding disposition, no embryo should be implanted, destroyed or used in research over the objection of an individual with decision-making authority (see, Assisted Reproductive Technologies, op. cit., at 317-320).

Proliferating cases regarding the disposition of embryos, as well as other assisted reproduction issues, will unquestionably spark further progression of the law.^[3] What is plain, however, is the need for clear, consistent principles to guide parties in protecting their interests and resolving their disputes, and the need for particular care in fashioning such principles as issues are better defined and appreciated. Against that backdrop we turn to the present appeal.

B. The Appeal Before Us. Like the Appellate Division, we conclude that disposition of these pre-zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as "persons" for constitutional purposes (see, Roe v Wade, 410 US 113, 162; Byrn v New York City Health & Hosps. Corp., 31 N.Y.2d 194, 203, appeal dismissed 410 US 949). The relevant inquiry thus becomes who has dispositional authority over them. Because that question is answered in this case by the parties' agreement, for purposes of resolving the present appeal we [565] have no cause to decide whether the pre-zygotes are entitled to "special respect" (cf., Davis v Davis, 842 SW2d 588, 596-597, supra; see also, Ethics Comm of Am Fertility Socy, Ethical Considerations of the New Reproductive Technologies, 46 Fertility & Sterility 1S, 32S [Supp 1 1986]).^[4]

Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them (see, Davis v Davis, 842 SW2d at 597, supra; see also, Early Embryos, op. cit., 76 Va L Rev at 463-469). Indeed, parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs (see, Prior Agreements, op. cit., 51 Ohio St L Rev at 414-418; see also, Children of Choice, op. cit., at 107, 113).

While the value of arriving at explicit agreements is apparent, we also recognize the extraordinary difficulty such an exercise presents. All agreements looking to the future to some extent deal with the unknown. Here, however, the uncertainties inherent in the IVF process itself are vastly complicated by cryopreservation, which extends the viability of pre-zygotes indefinitely and allows time for minds, and circumstances, to change. Divorce; death, disappearance or incapacity of one or both partners; aging; the birth of other children are but a [566] sampling of obvious changes in individual circumstances that might take place over time.

These factors make it particularly important that courts seek to honor the parties' expressions of choice, made before disputes erupt, with the parties' over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors — not the State and not the courts — who by their prior directive make this deeply personal life choice.

Here, the parties prior to cryopreservation of the pre-zygotes signed consents indicating their dispositional intent. While these documents were technically provided by the IVF program, neither party disputes that they are an expression of their own intent regarding disposition of their pre-zygotes. Nor do the parties contest the legality of those agreements, or that they were freely and knowingly made. The central issue is whether the consents clearly express the parties' intent regarding disposition of the pre-zygotes in the present circumstances. Appellant claims the consents are fraught with ambiguity in this respect; respondent urges they plainly mandate transfer to the IVF program.

The subject of this dispute may be novel but the common-law principles governing contract interpretation are not. Whether an agreement is ambiguous is a question of law for the courts (see, Van Wagner Adv. Corp. v S & M Enters., 67 N.Y.2d 186, 191). Ambiguity is determined by looking within the four corners of the document, not to outside sources (see, W.W.W. Assocs. v Giancontieri, 77 N.Y.2d 157, 162-163). And in deciding whether an agreement is ambiguous courts

"should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought" (Atwater & Co. v Panama R. R. Co., 246 N.Y. 519, 524).

[567] Where the document makes clear the parties' over-all intention, courts examining isolated provisions "`should then choose that construction which will carry out the plain purpose and object of the [agreement]'" (Williams Press v State of New York, 37 N.Y.2d 434, 440, quoting Empire Props. Corp. v Manufacturers Trust Co., 288 N.Y. 242, 249).

Applying those principles, we agree that the informed consents signed by the parties unequivocally manifest their mutual intention that in the present circumstances the pre-zygotes be donated for research to the IVF program.

The conclusion that emerges most strikingly from reviewing these consents as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears again and again throughout the lengthy documents. Words of shared understanding — "we," "us" and "our" — permeate the pages. The overriding choice of these parties could not be plainer: "We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law" (emphasis added).

That pervasive sentiment — both parties assuming "principal responsibility to decide the disposition of [their] frozen pre-zygotes" — is carried forward in ADDENDUM NO. 2-1:

"In the event that we * * * are unable to make a decision regarding disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to * * *

"Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program."

Thus, only by joint decision of the parties would the pre-zygotes be used for implantation. And otherwise, by mutual consent they would be donated to the IVF program for research purposes.

[568] The Appellate Division plurality identified, and correctly resolved, two claimed ambiguities in the consents. The first is the following sentence in INFORMED CONSENT NO. 2: "In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction." Appellant would instead read that sentence: "In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined by a court of competent jurisdiction." That is not, however, what the sentence says. Appellant's construction ignores the direction that ownership of the pre-zygotes "must be determined in a property settlement" — words that also must be given meaning, words that connote the parties' anticipated agreement as to disposition. Indeed, appellant and respondent did actually reach a settlement stipulation, reserving only the issue of the pre-zygotes (the subject of their earlier consents).

Additionally, while extrinsic evidence cannot create an ambiguity in an agreement, the plurality properly looked to the "uncontested divorce" instrument, signed only weeks after the consents, to resolve any ambiguity in the cited sentence. Although that instrument never became operative, it reaffirmed the earlier understanding that neither party would alone lay claim to possession of the pre-zygotes.^[5]

Apart from construing the sentence in isolation, the plurality also read it in the context of the consents as a whole. Viewed in that light, we too conclude that the isolated sentence was not dispositional at all but rather was "clearly designed to insulate the hospital and the IVF program from liability in the event of a legal dispute over the pre-zygotes arising in the context of a divorce" (235 AD2d at 160). To construe the sentence as appellant suggests — surrendering all control over the pre-zygotes to the courts — is directly at odds with the intent of the parties plainly manifested throughout the consents that disposition be only by joint agreement.

For much the same reason, we agree with the plurality's conclusion that ADDENDUM NO. 2-1 — the "STATEMENT OF DISPOSITION" — was not strictly limited to instances of "death or other [569] unforseen circumstances." Those are contingencies that would be resolved by the ADDENDUM, but they are not the only ones. We reach this conclusion, again, from reviewing the provisions in isolation and then in the context of the consents as a whole. While we agree that the words "death or any other unforeseen circumstances" in INFORMED CONSENT NO. 2 did not create a condition precedent (235 AD2d at 159), we also note that the present circumstances — including the parties' inability to reach the anticipated settlement — might well be seen as an "unforeseen" circumstance. Moreover, viewing the ADDENDUM in isolation, there is no hint of the claimed condition in the document itself. The document is a free-standing form, separately captioned and separately signed by the parties. Finally, viewing the issue in the context of the consents as a whole, as the plurality noted, "the overly narrow interpretation advocated by [appellant] is refuted not only by the broad language of the dispositional provision itself, but by other provisions of the informed consent document as well" (235 AD2d at 159).

As they embarked on the IVF program, appellant and respondent — "husband" and "wife," signing as such — clearly contemplated the fulfillment of a life dream of having a child during their marriage. The consents they signed provided for other contingencies, most especially that in the present circumstances the pre-zygotes would be donated to the IVF program for approved research purposes. These parties having clearly manifested their intention, the law will honor it.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs.

[1] We use the parties' term "pre-zygotes," which are defined in the record as "eggs which have been penetrated by sperm but have not yet joined genetic material."

[2] Recently, the New York State Task Force on Life and the Law issued a comprehensive report, Assisted Reproductive Technologies, together with recommendations for regulation. The report, following two years of study by the full Task Force, addresses a wide range of relevant subjects, such as the commercial aspects of what has become a sizable business, and impacts on children born of assisted reproductive technologies (see also, 1997-1998 NY Senate Bill S 5815 [Nov. 24, 1997] [requiring that couples specify in writing how embryos are to be disposed of before a facility can accept them for storage]).

[3] Within recent months, for example, the press has carried news of a divorcing New Jersey couple now litigating the disposition of frozen embryos, with the husband wanting them for implantation in a future spouse and the wife objecting (see, Booth, Fate of Frozen Embryos Brings N.J. Again to Bioethics Fore: With No Precedent, Court to Decide on Request to Destroy Fertilized Ova, NJLJ, Mar. 9, 1998, at 1, col 2). And a now-divorced California couple is litigating the issue of support of a child conceived during their marriage through a donor egg, donor sperm and surrogate mother (see, In re Marriage of Buzzanca, 61 Cal App 4th 1410, 72 Cal Rptr 2d 280 [Ct App 4th Dist]; see also, Hernandez and Maharaj, O.C. Couple Who Used Surrogate Ruled Parents; Custody: In Closely Watched Case, Appeals Court Declares That Intent Is More Important Than Biological Ties, L.A. Times, Mar. 11, 1998, at A1).

[4] Parties' agreements may, of course, be unenforceable as violative of public policy (see, e.g., Domestic Relations Law § 121 et seq. [declaring surrogate parenting contracts contrary to policy, void and unenforceable]; Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 122, 1998 Pocket Part, at 255 ["commercial surrogacy arrangements involve a form of procreation for profit, if not prostitution"]). Significantly changed circumstances also may preclude contract enforcement. Here, however, appellant does not urge that the consents violate public policy, or that they are legally unenforceable by reason of significantly changed circumstances.

[5] As noted by the Appellate Division, unless public policy is violated, parties to a litigation are free to chart their own procedural course — as they did here. On January 9, 1995, both sides agreed that the matter should be determined on the submissions, and one week later plaintiff's attorney indicated that the last affidavit had been submitted. "The record upon which we must rule was thereby established" (235 AD2d at 162).