To be or not to be a parent? In this case of first impression at the appellate level in New York, two potential parents seek two different dispositions of fertilized ova they created. No longer married, the ex-wife nevertheless continues to seek motherhood by implantation of the ova, while the ex-husband seeks their destruction in order to avoid unwanted parenthood following the parties’ divorce. The legal, emotional, and ethical nightmare resulting demonstrates the clear need for legislation mandating that in vitro fertilization clinics require the execution of a standardized, binding agreement setting forth the parties’ specific intentions in the event of foreseeable changes in circumstances, and possibly for legislation altering the parent status of the party objecting to parenthood to that of a sperm donor, thereby avoiding potential child support obligations.
Unfortunately, in the case before us, although the parties did enter into an "informed consent” document, it failed to provide an unambiguous statement of their intent. In this *169regard I wholeheartedly concur with Justice Friedmann’s analysis in his concurring opinion (hereinafter the concurrence) and vigorously dispute Justice Sullivan’s contention in his plurality opinion (hereinafter the plurality) that the agreement in issue, by any stretch of the imagination, reflects the intent of these parties to destroy their pre-zygotes in the event of divorce.
However, I disagree with the concurrence insofar as it concludes that the ex-husband’s rights must prevail as a matter of law, and serve as a veto over the ex-wife’s competing interests. In my view the parties’ competing wishes in regard to the disposition of the pre-zygotes should be decided only after a careful balancing of their respective rights, their circumstances, and their competing equities. As there was no trial conducted in this matter, and the Supreme Court’s determination was based solely upon the parties’ motion papers and memoranda of law, the record is insufficient to permit such a proper balancing of the equities. The issues before us are of such monumental consequence that a careful ad hoc analysis is merited. Accordingly, I would remit this matter for further proceedings, so as to provide a sufficient record to adequately assess the parties’ competing interests.
It is noteworthy that my colleagues and I are in unanimous agreement in regard to two major issues. First, that the Supreme Court erred in equating a woman’s procreational right to attain pregnancy via in vitro fertilization with her right to bodily autonomy attendant to an in vivo pregnancy. Secondly, that where the parties have expressed their agreement by contract, their intentions should control and that such agreements should be encouraged if not mandated.
I
The plurality provides a concise and adequate statement of the facts underlying this appeal. I would merely add some details explaining the procedures that must be endured by a woman undergoing in vitro fertilization (hereinafter IVF).
IVF requires that ovum production be stimulated in a woman through the administration of fertility drugs. The eggs are then retrieved either via laparoscopic surgery or ultrasound-aided, needle aspiration (see, Note, Davis v Davis: What About Future Disputes, 26 Conn L Rev 305, 307 [1993] [hereinafter Note, Future Disputes]). The eggs are then exposed to sperm in a petri dish where fertilization will take place (see, Note, Future Disputes, id., at 307). Three or four fertilized eggs *170may be transferred to the uterus where at least one will hopefully implant in the uterine lining achieving pregnancy (see, Note, Future Disputes, id., at 308; Comment, Frozen Embryos: Towards an Equitable Solution, 46 U Miami L Rev 803, 806 [1992]; Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St L J 407, n 3 [1990] [hereinafter Robertson, Prior Agreements]).
The IVF process is physically painful, emotionally draining, and financially burdensome (see, Note, Future Disputes, 26 Conn L Rev, op. cit., at 308; Note, The Davis Dilemma: How to Prevent Battles Over Frozen Preembryos, 41 Case W Res L Rev 543, 548 [1991] [hereinafter Note, Davis Dilemma]). Indeed, the parties in the instant matter reportedly spent in excess of $75,000 in their quest for conception. To minimize the toll taken on the parties to the IVF process, particularly the woman, ovarian stimulation intentionally results in the production and retrieval of a greater number of eggs than can be safely implanted in any one procedure (Note, Davis Dilemma, op. cit., at 548). Accordingly, the IVF process now frequently includes cryopreservation: the dehydration and freezing of prezygotes which permits them to be stored for later use (see, Robertson, Prior Agreements, 51 Ohio St L J, op. cit., at 408). While cryopreservation may facilitate various aspects of the IVF process, it carries with it the risk that between the time of fertilization and implantation, intervening events may cause one or both of the participants to change their minds.
II
Before the Supreme Court, Nassau County, the ex-wife moved for pendente lite relief, including a temporary restraining order to enjoin the ex-husband from destroying the prezygotes. The ex-husband cross-moved to enjoin the ex-wife from gaining access to the pre-zygotes to prevent their implantation. He contended that pursuant to the terms of the disposition provisions of an addendum to the informed consent document, the parties agreed that in the event they no longer wanted to complete the IVF process the pre-zygotes would be donated for scientific research as expressly provided for in the addendum. The ex-husband argued that while he consented to participation in the IVF procedure with his (then) wife so they might achieve the parenthood they both desired as a couple, he vehemently opposed the ex-wife’s attempt to bear "unwanted * * * genetic offspring, out of wedlock” which would constitute an "enormous emotional, psychological and financial burden *171upon [him]”. The ex-wife opposed the cross motion, inter alia, arguing that the addendum did not provide for the disposal of the pre-zygotes, but that pursuant to the provisions of the informed consent document, in the event of divorce the disposition of the pre-zygotes would be left to the court to decide.
By pendente lite order dated November 18, 1993, the court, on consent of the parties, enjoined either party from gaining access to the pre-zygotes. By stipulation dated April 25, 1994, the parties settled all marital and financial issues pursuant to the provisions of a written agreement. The stipulation, however, further recited that issues concerning the possession of the pre-zygotes would be decided by the court. On May 16, 1994, the court signed a judgment of divorce.
With only the "custody” issue remaining, the ex-wife submitted a lengthy memorandum of law wherein she reiterated her contention that the parties had not provided for the disposition of the pre-zygotes via the informed consent form. Furthermore, in accordance with the opinion of the Supreme Court of Tennessee in Davis v Davis (842 SW2d 588, cert denied sub nom. Stowe v Davis, 507 US 911), she argued that constitutional protections embracing her freedom to procreate compelled that after balancing the parties’ respective interests, she should be permitted to implant the pre-zygotes. By having agreed to participate in the IVF procedure and by her detrimental reliance thereupon, the ex-wife contended that an implied contract existed pursuant to which the ex-husband was estopped from contesting her decision to implant the pre-zygotes. She also pleaded in an accompanying affidavit that at age 36, and with no prospects of a quick remarriage, implantation of the remaining, frozen pre-zygotes represented her "best and possibly, last opportunity to bear a child”.
The ex-husband challenged the ex-wife’s estoppel argument by pointing out that the agreement to procreate via IVF was one he and his ex-wife reached as a couple, during their marriage. He argued that any implied contract that might have once existed had been abrogated upon the parties’ separation and divorce. He further pointed out that his ex-wife’s decision to have his child postwedlock exposed him to the obligation to financially support the child. He contended that because he could not avoid the financial obligations of unwanted fatherhood, an unfair burden would be placed upon him which was "tantamount to * * * being forced to procreate” with the ex-wife. The ex-husband also cited Davis v Davis (supra) to contend that a balancing of the equities in this case clearly *172favored his decision to prevent the ex-wife from attempting to implant and give birth. He again reiterated his contentions that the informed consent document was a contract between the parties pursuant to which they agreed to donate the prezygotes to scientific research in the event of a divorce.
III
The issues addressed herein are of first impression at the appellate level in this State. Indeed, there is a dearth of decisional authority regarding controversies over the products of in vitro fertilization. Davis v Davis (supra) appears to be the first American case to recognize, in an IVF context, that there are both fundamental rights to procreate and to avoid procreation. Prior to Davis the law struggled with difficult issues with little guidance as to the disposition of pre-zygotes.
For example, in the unreported decision of Del Zio v Columbia Presbyt. Med. Ctr. (US Dist Ct, SD NY, Apr. 12, 1978, No. 74-3558) a female IVF patient was awarded damages to compensate her for the destruction of her eggs (see also, Davis v Davis, supra, at 602, n 25). York v Jones (717 F Supp 421) presented a controversy between the progenitors of a frozen pre-zygote and a Virginia reproductive medicine facility which refused to transfer the pre-zygote to a different facility in California. The court enforced the "parents” rights under a bailment analysis.
Few States have enacted laws attempting to regulate IVF or to deal with its ethical implications (see, Note, Davis v Davis: The Applicability of Privacy and Property Rights to the Disposition of Frozen Preembroyos in Intrafamilial Disputes, 24 U Tol L Rev 763, 767 [1993] [hereinafter Note, Privacy and Property]). It appears that of the four States with any relevant laws on the subject, Louisiana’s statutory scheme is the most comprehensive as it provides that an in vitro fertilized ovum is a juridical person (see, Note, Privacy and Property, ibid.; La Rev Stat Annot, tit 9, § 123). New York is among the majority of States which have not legislated in the area (but see, Domestic Relations Law § 73).
Cryogenic preservation has caused controversy abroad as well. The Supreme Court of Israel initially rejected a divorced woman’s decision to implant frozen pre-zygotes over the objections of her former husband (see, Nachmani v Nachmani, Mar. 30, 1995, C.A. 5587/93). However, upon further review and reconsideration by the entire court (see, Gordon, Court Upholds Legitimacy of Second Hearings, Jerusalem Post, Mar. 3, 1996, *173at 12), a 7-to-4 majority awarded possession of the pre-zygotes to Mrs. Nachmani, finding that once fertilization had occurred through IVF, "the positive right” to be a parent overcame "the negative right not to be [one]” (Friedman, A Victory for Life, Westchester Jewish Week, Sept. 20, 1996, at 1, 39). Unfortunately attempts to obtain an English translation of the decision have been unsuccessful.
A significant case arose in Australia when the American "parents” of three frozen pre-zygotes perished in a plane crash without providing for the disposition of the pre-zygotes. A great debate raged and the Australian State of Victoria ordered a study by the Waller Committee to consider the " 'social, ethical and legal issues arising from in vitro fertilization’ ” (Comment, Frozen Embryos: A Need for Thawing in the Legislative Process, 47 SMU L Rev 131, 156 [1993] [hereinafter Comment, Frozen Embryos]). The Waller Committee recommended that IVF participants be required to execute written consent forms which, inter alia, provide for the disposition of the pre-zygotes (see, Comment, Frozen Embryos, id., at 156-157). The Victoria Parliament passed the Infertility Medical Procedures Act in 1988 to govern such future controversies (see, Comment, Frozen Embryos, ibid). Simultaneous therewith, the Warnock Committee released its report to the British government, setting forth 63 separate recommendations governing IVF procedures and facilities (see, Comment, Frozen Embryos, id., at 157-158). Resulting legislation in Great Britain once again caused controversy and a debate raged over the fate of unclaimed frozen pre-zygotes due to be discarded as of August 1, 1996 (see, Ibrahim, Ethical Furor Erupts in Britain: Should Unclaimed Embryos Diet, NY Times, Aug, 1, 1996, at Al, col 1). Some other nations have adopted varying approaches to cope with the difficult issues posed by such cutting-edge reproductive technology (see, Lemonick, Sorry, Your Time Is Up, Time, Aug. 12, 1996, at 41).
IV
Because the plurality concludes that the parties’ contract with the Mather Hospital governs the resolution of this case, it does not discuss the facts of Davis v Davis (842 SW2d 588, supra) in sufficient detail. The concurrence, which essentially rejects a balancing of interests analysis as adopted by the Davis court, likewise does not adequately explore the similarities between Davis and the instant matter. Accordingly, I believe the following discussion is warranted.
*174Davis presented an analogous fact pattern. A husband and wife who could not produce a family through coitus turned to IVF. Their relationship subsequently soured and when they separated, seven pre-zygotes remained in cryogenic storage. Initially, Mrs. Davis desired implantation to achieve pregnancy. By the time the appeal was decided by the Tennessee Supreme Court, she sought to donate the pre-zygotes to a childless couple. At all pertinent times Mr. Davis opposed any disposition of the pre-zygotes that would result in involuntary fatherhood.
Among the many issues discussed by the court in Davis, it was significant that the Davises were permitted to participate in an IVF program without being required to execute an agreement providing for the disposition of the pre-zygotes in the event of death or divorce or other contingencies (see, Robertson, Prior Agreements, 51 Ohio St L J 407, op. cit.). Reportedly, the clinic was in the process of moving its location and the appropriate forms could not be found (see, Note, Future Disputes, 26 Conn L Rev, op. cit., at 327). Accordingly, the court could not ascertain the parties’ intentions by reference to an express contract.
The Davis court also considered the status of the pre-zygotes. After discussing, inter alia, the leading decisions of the United States Supreme Court on abortion, birth control, and the right to privacy and reproductive autonomy, the Davis court concluded that the pre-zygotes were not persons, nor were they property. Rather, in accordance with the guidelines of the Ethics Committee of the American Fertility Society, the Davis court recognized that the pre-zygotes transcended any person/ property dichotomy. The court stated that pre-zygotes: " 'deserve[ ] respect greater than that accorded to human tissue but not the respect accorded to actual persons. The preembryo is due greater respect than other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of person-hood, is not yet established as developmentally individual, and may never realize its biologic potential’ ”. (Davis v Davis, 842 SW2d 588, 596, supra, quoting Report of Ethics Comm of American Fertility Socy published in 53 J Am Fertility Socy [No. 6], at 34S-35S [June 1990] [hereinafter Ethics Comm Report]). The court initially determined that had there been a valid contract between the Davises regarding the disposition of any unused pre-zygotes, that contract would have been enforceable (see, Davis v Davis, supra, at 597).
*175The Davis court rejected the contention that by virtue of their mutual participation in an IVF program the parties were bound by the terms of an implied contract (see, Davis v Davis, supra, at 598). The court held that the parties had not agreed upon any contingencies for reproduction outside of a marital context (see, Davis v Davis, supra, at 598).
The Davis court thus decided the controversy over the prezygotes by balancing the parties’ respective rights to procreational autonomy. Recognizing that the right to privacy includes the right to be left alone, the court concluded that just as Mrs. Davis enjoyed a fundamental right to procreate, Mr. Davis had an equally fundamental right to avoid procreation. The Davis court further noted that in the context of in vitro fertilization where the pre-zygotes are not situated within the woman’s body, respecting a man’s objections did not violate the rule of cases such as Planned Parenthood v Danforth (428 US 52), i.e., the man was not compelling a woman to undergo an abortion in violation of her right to bodily integrity. Rather, balancing the parties’ respective interests, the court concluded that Mr. Davis’ right to avoid unwanted fatherhood was more compelling than was Mrs. Davis’ right to donate the pre-zygotes to an infertile couple. The court noted that had Mrs. Davis still wanted the pre-zygotes to achieve motherhood herself against Mr. Davis’ wishes, the case would have been "closer” (Davis v Davis, supra, at 604). The instant appeal presents such a "closer” case.
V
The Supreme Court, Nassau County, correctly commenced its analysis with consideration of the issue whether the prezygotes were property or "persons”. As the court further correctly concluded, the pre-zygotes are not "persons” entitled to constitutional protection. The United States Supreme Court expressly declined to confer person status upon the unborn in Roe v Wade (410 US 113, 162; cf., Webster v Reproductive Health Servs., 492 US 490). Rather, as recognized by the court in Davis v Davis, the prevailing view is that cryogenically frozen pre-zygotes are entitled to " 'special respect * * * to protect the welfare of potential offspring’ ” (Davis v Davis, supra, at 596, quoting Ethics Comm Report, op. cit., at 35S), and that decision-making authority with respect to the prezygotes rests primarily with the gamete providers (see, Davis v Davis, supra, at 597; see also, Note, Future Disputes, 26 Conn L Rev, op. cit., at 309-310; Note, Davis Dilemma, 41 Case W Res *176L Rev 543, op. cit.; Note, Privacy and Property, 24 U Tol L Rev 763, op. cit). The parties to the instant appeal both essentially adopt this conclusion.
The Supreme Court also concluded that the informed consent document signed by the parties did not demonstrate their agreement to donate their pre-zygotes to scientific research in the event of their divorce, contrary to the ex-husband’s contentions and the conclusion of the plurality. Indeed, the agreement expressly provides that "[i]n 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”. The addendum which provided for the donation of the pre-zygotes to scientific research is a contingency provision triggered only by "our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of [our] pre-zygotes” (emphasis supplied). Obviously, divorce is not one of the enumerated contingencies triggering the operation of the dispositional addendum. Whether as a result of poor draftsmanship or design, the informed consent agreement simply does not compel any disposition as a result of divorce. Accordingly, this appeal may not be decided along a contractual analysis (cf., McDonald v McDonald, 196 AD2d 7).
VI
As all members of this panel agree, the Supreme Court’s conclusion that the ex-wife was solely responsible for determining the fate of the pre-zygotes is logically unsupportable. The lynchpin of the court’s reasoning rested upon its intuitive determination that a woman’s right to refuse to undergo an abortion and to carry a child to term equally applied to empower her with the exclusive right to decide to implant the prezygotes and give birth. The two situations are not analogous.
Roe v Wade (410 US 113, supra) and Planned Parenthood v Danforth (428 US 52, supra) teach us that a woman alone controls her bodily integrity; her choice dictates the fate of a nonviable fetus (see, Meeker, Issues of Property, Ethics and Consent in the Transplantation of Fetal Reproductive Tissue, 9 High Tech L J 185, 202 [1994]). As one commentator observed, "[a] woman’s right to bodily integrity, as established in Roe and Danforth, simply is not implicated prior to implantation” (Note, To Have or Not To Have: Whose Procreative Rights Prevail in Disputes Over Dispositions of Frozen Embryos?, 27 Conn L Rev 1377, 1401 [1995] [hereinafter Note, Procreative *177Rights]). In a morally analogous context the Court of Appeals of New York observed that a man "has a constitutionally protected right to decide for himself whether to father a child” (Matter of L. Pamela P. v Frank S., 59 NY2d 1, 6). As the Davis court aptly concluded, procreational autonomy is a right enjoyed by both females and males and includes the right to decide to procreate or not procreate (see, Davis v Davis, supra, at 598-601).
Nor was the Supreme Court correct in concluding that the ex-husband’s participation in the IVF program constituted a waiver of his right to avoid procreation. By participating in the program, the ex-husband indicated his desire to father a child with his then-wife, and absent evidence to the contrary, he did not waive for all eternity any objections to his ex-wife bearing his child long after the termination of their union. A waiver is an intentional and voluntary relinquishment of a known right (see, 57 NY Jur 2d, Estoppel, Ratification, and Waiver, § 74). It is naive to cavalierly conclude that a marital attempt to conceive constitutes a waiver of the right to avoid procreation in a nonmarital context. Clearly, when two people pursue the extraordinary steps of in vitro fertilization to conceive a child in the context of their marriage, the termination of that union is an intervening event which may provide the parties with an opportunity to reconsider their decision (see, Note, Procreative Rights, 27 Conn L Rev, op. cit., at 1400). Participation in an IVF program during a marriage cannot a fortiori be held to demonstrate, as a matter of law, a waiver of the right of former spouses to avoid procreation at a subsequent time.
VII
While the concurrence and I agree with the Supreme Court’s conclusion that the parties’ contract is not dispositive of this controversy, we part company over the issue of whether the Davis balancing-of-interests approach should be adopted herein. While I recognize the concurrence’s concerns that the constitutionally recognized right to avoid procreation can be irrevocably lost by unwanted implantation, it is equally important to recognize the procreational rights of a woman desiring implantation. These rights are just as fundamental, and, depending upon the circumstances of a given case, the right to procreate may be just as irrevocably lost as a result of the other party’s veto. Simply stated, the competing fundamental, personal rights of both parties must be taken into consideration and balanced utilizing a fact-sensitive analysis.
*178I believe that just such an appropriate analysis to decide this controversy is that provided by the Davis court; "to consider the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by differing resolutions” (Davis v Davis, supra, at 603).
In approaching such a controversy between irreconcilably opposed fundamental rights to beget or not beget a child, we must consider "the burdens imposed on the parties by solutions that would have the effect of disallowing the exercise of individual procreational autonomy with respect to these particular preembryos” (Davis v Davis, supra, at 603). The issues to be decided herein cannot be oversimplified by deciding whether, in general, unwanted parenthood is a heavier burden than the denial of an opportunity for parenthood. Rather, the immediate question before us is whether the burdens of unwanted paternity to the "would-not-be father” exceed the deprivation of a possibly last opportunity for maternity to the "would-be-mother” in this case. That balancing test will require the consideration of many diverse factors.
Of critical importance, before a court decides that the ex-husband’s objections should be respected, it must carefully consider whether the ex-wife possesses reasonable opportunities to achieve motherhood by other alternatives. For example, are there additional unfertilized eggs that have already been retrieved which might be fertilized by sperm donated by some male other than the ex-husband? How do the ex-wife’s age, physical, emotional, and financial condition affect the possibility of any future attempt at IVF? Does she have the financial resources to effectively relieve the ex-husband of future child support obligations in accordance with her expressed intentions by, for example, establishing an irrevocable trust or by purchasing an annuity to assure his indemnification of such obligations? Is adoption a reasonable possibility? How sincere and deeply rooted is her emotional investment in this reproductive opportunity?
To be weighed against the foregoing factors, and any others a trial court might deem relevant, are the burdens attendant upon a man’s unwanted fatherhood. Obviously, as a biological father, there will be a duty to support the child to age 21 (see, Family Ct Act § 413 [1]). At present it does not appear that a means exists to permanently and completely absolve a father of his support obligations even if, as the ex-wife herein suggests, she would be willing to bear them alone (see, Matter of Thomas S. v Robin Y., 209 AD2d 298; Matter of Harvey-Cook v *179Neill, 118 AD2d 109) (unless the ex-wife possesses extraordinary wealth and indemnifies the ex-husband as noted above). Moreover, there does not appear to be any enforceable means of waiving support obligations, even with the consent of the other parent (see, Matter of L. Pamela P. v Frank S., 59 NY2d 1, supra; Matter of Karen Beth B. v Douglas G., 216 AD2d 12). Ultimately, any child is entitled to be supported by his or her parents in accordance with the child’s needs and the parents’ means (Matter of Boden v Boden, 42 NY2d 210) although the ex-wife could theoretically agree to bear all or part of its support obligation which would, in effect, indemnify the ex-husband for his responsibilities so long as the child’s needs are being met (see, Matter of Brescia v Fitts, 56 NY2d 132). While commentators may debate the advisability of permitting the abrogation of customary support obligations in nontraditional family settings (see, Bernstein, This Child Does Have Two Mothers * * * and a Sperm Donor with Visitation, 22 NYU Rev L & Soc Change 1, 25 [1996]; Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L Rev 265 [1995]; Schiff, Frustrated Intentions and Binding Biology: Seeking Aid in the Law, 44 Duke L J 524 [1994]), ultimately it is for the Legislature to enact such progressive laws. A strong case can be made for legislation relieving the objectant of unwanted parenthood by treating him as a sperm donor in cases such as this.
Clearly an ex-husband’s 21-year-long potential child support liability may be an overwhelming consideration in many cases. However, it is not necessarily dispositive in all. Indeed, it may be of little or no importance where, for example, either party possesses extraordinary means to provide for the reasonable support needs of a child born through IVF. Similarly, support considerations may not be germane where an ex-husband has no income-producing capacity due to disability or incarceration. Consider, for example, the hypothetical case of a potential father who has been incarcerated for life but objects to the mother’s wishes to procreate purely out of malice. Moreover, other equitable considerations may counterbalance an ex-husband’s support objections; for example the ex-wife may have committed all of her financial resources to achieve in vitro fertilization with the understanding that it would proceed even in the event of divorce or separation.
There may well also be moral and psychological impacts upon a man who, against his will, is compelled to procreate with an ex-wife. If indeed the evidence establishes the ex-*180husband’s genuine psychological objections to be committed to a child genetically his, albeit whose birth was unwanted, he theoretically could be placed in the unenviable situation of having to deal with acrimonious visitation and/or custody disputes. A childless, divorced couple could be provided with new and lasting ammunition for their hostilities. At a minimum, the ex-husband might be forced to accept the fact that his genetic offspring walks the earth without his love and guidance. The Davis court paid special heed to Mr. Davis’ tragic "boyhood experiences” in deferring to his objections to unwanted fatherhood (Davis v Davis, 842 SW2d 588, 603-604, supra). Clearly, objections to involuntary procreation should not be lightly cast aside.
On the other hand, there are undeniably numerous men who callously and thoughtlessly father children without any concern for their offspring. For such a man the psychological and emotional impacts of unwanted fatherhood would be less severe or even nonexistent. The motivation behind the objections should therefore be carefully scrutinized.
The instant record is insufficient to permit a fair balancing of the salient considerations. We have only minimal information regarding the parties’ backgrounds, psychological makeups, financial, and physical circumstances. Both parties have essentially taken the position that they should prevail as a matter of law without a factual inquiry. Therefore, further proceedings are necessary to flesh out the record so that the parties’ respective interests and burdens may be evaluated and a factual determination may be rendered.
While the parties may have charted their procedural course by agreeing that this matter be determined upon the papers submitted to the Supreme Court, we are not bound by that agreement if it violates public policy (see, Mitchell v New York Hosp., 61 NY2d 208, 214). In a matter as significant as this, one of first impression, this Court is not constrained to render a decision upon an insufficient record which does not allow for a fair and reasoned determination. Such a limited review would indeed violate public policy.
VIII
The points raised by the concurrence warrant special attention insofar as I agree with its conclusion that the parties did not reach any agreement governing the disposition of the prezygotes. The necessary analysis of this controversy requires a sensitive balancing of the respective rights of the two individu*181als whose gametes combined to form the pre-zygotes. While in a given case, the factors against implantation may well outweigh those which favor implantation, artificial presumptions and bright-line tests tend to work more mischief than they avoid (see, Matter of Tropea v Tropea, 87 NY2d 727). Each case must be decided upon its own special facts. Indeed, a proponent of implantation should not be required to demonstrate exhaustion of all procreational alternatives where, for example, her former mate’s opposition is not based upon any legitimate objections to parenthood but upon a desire to harass. In such cases sound judicial discretion does not need to be shackled by threshold showings and presumptions which exalt form over substance and subjugate the rights of one of the two individuals who should be on equal footing before the court. Therefore, while I agree with the concurrence’s avowed egalitarian assertions that a woman’s procreative choices should not enjoy an advantage over those of her former partner, neither should they be at a disadvantage.
Finally, insofar as the concurrence would award judgment to the ex-husband in this case thereby precluding implantation, I can only observe that it would be manifestly unfair to adopt a new, prospective standard requiring this ex-wife to have met evidentiary thresholds, created after the fact, so as to deny her any opportunity to have met those very thresholds. Indeed, the concurrence opines that only following a prima facie showing that other means of achieving parenthood are unavailable should a court entertain a balancing-of-interests approach. However, such a conclusion deprives the plaintiff herein of any opportunity of making that very showing. Therefore, in any event, this case should be remitted for further proceedings.
IX
The Davis court expressly eschewed a rule that would provide the party resisting implantation with a right of veto. "[P]rocreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation” (Davis v Davis, 842 SW2d 588, 601, supra). The court thus recognized the undesirability of what one commentator has called "The Double Consent Rule” (Note, Davis Dilemma, 41 Case W Res L Rev, op. cit., at 572). However, in a seemingly contradictory statement, the Davis court further held that "[o]rdinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than [the] use *182of the preembryos in question” (Davis v Davis, supra, at 604). I would not vote to adopt any presumption in favor of either position, but rather I conclude that each case must be decided on its individual facts.
Despite the competing and diverse viewpoints surrounding the issues before us, certain uncontroverted truths clearly emerge. Parenthood and the deprivation of parenthood are unique and profound experiences that invariably impact deeply upon the lives of both the willing and unwilling potential parent. It is a particularly precious experience to individuals who are required to resort to the extraordinary procedures of IVF. To the party resisting implantation after a relationship has failed, the psychological and financial burdens of unwanted parenthood will be a bitter pill to swallow. For the party who has suffered physically and invested heavily, emotionally, and financially in a desperate attempt to achieve parenthood, deprivation of this possibly singular opportunity may be devastating.
Ideally, parenthood should be achieved after thoughtful deliberation and careful preparation. Where IVF is undertaken, the forethought and planning that must of necessity precede it should result in a written agreement providing, inter alia, for the parties’ wishes regarding disposition of prezygotes in the event of their divorce, death, or incapacity. In this way, the ultimate disposition of the pre-zygotes will be made by those responsible for their creation, when as prospective hopeful parents they were of one mind, rather than by Judges, and the fate of that "special property” will be accorded the "special respect” it deserves. Absent such voluntary, intelligent, and informed agreement between the participants, the courts should be required to resolve these difficult issues on a case-by-case basis, since the equities of each case are sui generis. Insofar as a majority of this Court finds that the parties’ agreement does not resolve the issues in controversy herein, I respectfully conclude that the instant matter should be remitted to the Supreme Court, Nassau County, for the requisite consideration of the unique facts essential to reaching such a resolution.
Copertino, J., concurs with Sullivan, J.; Friedmann, J., concurs in a separate opinion; Miller, J. P., and Altman, J., dissent in a separate opinion by Miller, J. P.
Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment directing that the disposition *183of the five pre-zygotes shall be in accordance with paragraph 2 (b) of Addendum No. 2-1 of the parties’ informed consent agreement.