A New York Court has ordered that a former couple's last frozen embryo must be destroyed, per the husband's wishes, despite being the woman's last chance to have a biologically related child.
Prior to IVF treatment at the New Hope Fertility Centre (NHF) in 2012, the couple both signed a consent agreement that allowed either party to withdraw their consent for embryos or gametes to be used at any stage.
'As one party has withdrawn consent, the remaining cryopreserved embryo may not be used for any purpose by either party… Accordingly, the husband, as prevailing party on this appeal, is awarded the remaining embryo, but only for the purpose of ensuring that NHF disposes of the embryo as provided in the Consent Agreement,' wrote Associate Justice David Friedman.
Bat-El Yishay and Yoram Finklestein married in 2011 in Israel, before moving to New York in 2012 where they had IVF treatment. After several unsuccessful attempts, the husband filed for divorce, requesting sole ownership of the remaining frozen embryo and a court order to prevent Yishay from using it.
In 2014, Finklestein wrote to the clinic, declaring that he withdrew consent for his gametes or resulting embryos to be used.
In 2017, Justice Deborah A Kaplan in the New York Supreme Court granted custody of the embryo to Yishay. Her reasoning was influenced by the fact that the embryo represented Yishay's 'last chance to become a biological parent'.
Overturning the 2017 decision, five justices of the New York Supreme Court Appellate Division ruled that the case is a matter of contract law and that Yishay has no right to use the embryo.