Facts: A and B, a married couple, were having difficulties conceiving a child. They chose to undergo in vitro fertilization (IVF), which involves removing the woman’s eggs and combining them in a petri dish with the man’s sperm. A and B’s process yielded multiple fertilized eggs (or pre-embryos), which resulted in the birth of their twin daughters. The couple chose to freeze two extra vials of pre=-embryos for possible future implantation.

During the fertility process, A and B signed various required, preprinted consent forms agreeing to undergo IVF. The consent form’s primary purpose was to explain to the donors the benefits and risks of freezing pre-embryos. At the bottom of one of these forms, the wife wrote in that if they ever separated, she could still use the pre-embryos. The husband duly agreed. Years later, the marriage was on the rocks. The wife had one of the frozen pre-embryos implanted without informing her husband, who learned of the news from his insurance company. Drama ensued. The husband filed for divo9rce. The wife got a restraining order. As part of the divorce, the husband asked the court to prohibit his wife from using the remaining pre-=embryos. The wife argued that it was a simple matter of contract law. The lo2wer court declared the agreement unenforceable as against public policy. The wife appealed.

Questions:

1. Should a court enforce a contract for the use of fertilized eggs against the father’s wishes?

2. Did the husband and wife enter into a contract to permit the wife to use the pre-embryos in the event of their separation? 

3. Why did the court hold this clause to be unenforceable?

4. Would it have made any difference if the contract at issue were completely unambiguous?