Consent to Wife’s IVF Did Not Create Contract Between Fertility Clinic and Husband; Husband Had Action Against Wife for Fraud

A fertility clinic that requires the husband’s consent prior to performing in vitro fertilization (IVF) procedures upon the wife is not in a contractual relationship with the husband. Therefore, a husband could not maintain a claim against the clinic for breach of contract.


The husband brought an action for various contract and tort claims against both the clinic and his former wife alleging his consent to the procedures was based on a previously signed agreement that he would acknowledge paternity but not be financially responsible for the children. The husband alleged the wife breached the agreement not to seek child support from the husband in exchange for the husband’s consent to the treatments. The IVF procedures were performed while the couple was separated but prior to their divorce, using donated eggs and sperm. The husband claimed that the wife obtained his signature outside the clinic by threatening to withdraw support for the husband’s citizenship application unless he signed the consent form.


The husband claimed the clinic breached its contractual duty to him by accepting his consent despite having had no personal contact with him. In its ruling on this claim against the clinic, the appellate court ruled that there was no exchange of consideration or services between the husband and the clinic, and that his signature was merely an ancillary condition imposed to effect the contract between the clinic and the wife. Therefore, there was no actual or implied contract between the husband and the clinic that could be breached. The appellate court affirmed the trial court’s dismissal but on the ground that no claim was stated, rather than collateral estoppel. The husband's breach of contract claim against the clinic was not barred, pursuant to collateral estoppel, by the prior judgment in the divorce action because the clinic was not a party to the divorce action.


Further, the appellate court ruled that the limitation period for fraud claims against the clinic began to run when the final consent form was accepted by the clinic. Dismissal of these claims was affirmed, but on statute of limitations grounds rather than collateral estoppel.


On the contract and tort claims against the wife, the court held the wife did not engage in economic duress such as would invalidate the husband's consent to the treatments, the wife's alleged actions in obtaining her husband's consent were not extreme and outrageous, but the husband sufficiently alleged a claim of fraudulent inducement against the wife. The threats could not be the basis of a claim of duress because the wife had no duty to support the husband’s application, so it was not wrongful to withdraw support. In fact, the United States Attorney General may reverse an immigration decision if it is found that a fee or other consideration was offered in exchange for a spousal petition of support. The wife’s threat to withdraw support from the husband’s citizenship application and to have him deported unless he signed the consent for IVF was not extreme and outrageous as a matter of law sufficient to support a claim of intentional infliction of emotional distress.


The appellate court vacated the trial court’s dismissal of the husband’s claim against the wife alleging fraudulent inducement to sign the consent form. Allegations that the wife's failure to disclose the full contents of the consent form was a misrepresentation of a material fact, made to induce his signature, and that he relied on that misrepresentation to his detriment were sufficient to state a claim, and it was remanded for further proceedings. However, the court noted the husband could not claim his child support payments as damages, as that would be a collateral attack on the decision of the Probate and Family Court judge. The fraud claim in this case could only continue to the extent the husband could allege damages independent of his child support obligations.


See: Okoli v. Okoli, 81 Mass.App.Ct. 381, 2012 WL 687856 (Mass.App.Ct. Mar 06, 2012).