Case Commentary: No conditional consent to IVF

posted Mar 7, 2012, 11:52 AM by Michael Vosilla

The Appeals Court’s recent decision in Okili v. Okili demonstrates that consent to in vitro fertilization (“IVF”) creates parental obligations to any child born as a result and these obligations cannot be negotiated away even when the consent to the IVF was conditioned upon no further financial obligations should a child result from the IVF.

A husband and wife had been separated when the wife was contacted that donor eggs had become available for purposes of IVF. The wife wanted to proceed with the IVF process and needed her husband’s consent. The husband needed the wife’s continued support of his citizenship application. They reached an agreement that the husband would consent to the IVF provided he would not bear any future financial responsibility for any offspring that may result and the wife continue to support his immigration application.

The Massachusetts Appeals Court determined that the agreement of the parties with respect to the conditional consent to the IVF would not be upheld. The court reasoned that the husband had consented to the IVF, and as such had consented to create a child. Accordingly, the husband would be financially responsible for said child as a matter of law, even if he explicitly did not consent to becoming a parent. The rule of law, as stated by the Appeals Court is “Massachusetts courts should not inquire into a person’s subjective intent to become a parent when determining parental status.”

The court did not give weight to the husband’s argument that his consent to the IVF was contracted under duress, specifically that his wife had threatened to withdraw support for his immigration application. However, this issue was not properly briefed before the court and as such was dismissed.