[151]*151OPINION OF THE COURT
Sullivan, J.
The instant case presents this Court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent "uncontested divorce” instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermoré, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.
I
The plaintiff Maureen Kass and the defendant Steven Kass were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a "General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: "informed consent form no. 2: cryopreservation of human pre-zygotes”, comprising pages one to five of the document, and "informed consent FORM NO. 2—ADDENDUM NO. 2-1: CRYOPRESERVATION—STATEMENT of disposition”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation:
[152]*152"III Disposition of Pre-Zygotes
"We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our'frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In 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. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage. * * *
"The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes, these important decisions must be DISCUSSED WITH OUR IVF PHYSICIAN AND OUR WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO. 2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION which is filed with the ivf program” (emphasis supplied).
In the second section of the informed consent document, the parties expressly stated their intent as to the cryopreservation and disposition of the pre-zygotes as follows:
"We understand that it is IVF Program Policy to obtain our informed consent to the number of pre-zygotes which are to be cryopreserved and to the disposition of excess cryopreserved pre-zygotes. We are to indicate our choices by signing our initials where noted below.
"1. We consent to cryopreservation of all pre-zygotes which are not transferred during this IVF cycle for possible use in [sic] by us in a future IVF cycle. * * *
"2. In the event that we no longer wish to initiate a pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to * * *
"(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program” (emphasis supplied).
[153]*153Subsequently, on May 20, 1993, numerous ova were removed from the plaintiff. Two days later, four fertilized ova were implanted in the plaintiff’s sister, who had agreed to act as a surrogate. The five remaining pre-zygotes were cryopreserved by the IVF program pursuant to the parties’ express wishes as set forth in "addendum no. 2-1” of the informed consent document, set forth above.
II
On June 4, 1993, the parties were advised that a surrogate pregnancy had not resulted from the May 20th procedure, and the plaintiff’s sister changed her mind and refused to continue her participation. Their hopes dashed, the parties agreed almost immediately thereafter to dissolve their marriage. Hence, on June 7, 1993, the parties executed a document typed by the plaintiff which provided for an uncontested divorce. Significantly, that instrument set forth their understanding of what they previously had agreed to in the informed consent document with regard to the disposition of the remaining cryopreserved pre-zygotes, as follows: "The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass [J Steve Kass or anyone else will lay claim to custody of these pre-zygotes” (emphasis supplied).
Notwithstanding the foregoing, the plaintiff changed her mind and, on June 28, 1993, wrote letters to both the hospital and to her IVF physician advising them of the parties’ marital difficulties and stating her adamant opposition to the destruction or release of the five pre-zygotes. The plaintiff then commenced this matrimonial action by summons and verified complaint filed July 21, 1993. Among the various items of relief sought therein was the plaintiff’s request that she be awarded "sole custody of the frozen fertilized eggs now being held at Mather Memorial Hospital”. The plaintiff indicated that she wanted possession of the pre-zygotes so that, rather than having them implanted in her sister as on the previous occasion, the plaintiff herself could undergo yet another IVF implantation procedure. In his verified answer, the defendant opposed both the removal of the pre-zygotes from cryopreservation and any further attempt to achieve a pregnancy, and counterclaimed for specific performance of the parties’ election to permit the IVF program to retain the pre-zygotes for study and research, as provided in "addendum no. 2-1” of the informed consent document.
[154]*154By stipulation executed December 17, 1993, the parties resolved all financial and property issues in the matrimonial action, but reserved their rights with respect to the custody and possession of the pre-zygotes. By further stipulation dated April 25, 1994, the parties agreed, inter alia, to submit their respective arguments regarding custody or possession of the pre-zygotes to the court for determination. Additionally, on or about January 9, 1995, the parties agreed to rely solely on the papers submitted to the court.
Ill
In a memorandum decision dated January 18, 1995, the Supreme Court, Nassau County (Roncallo, J.), ruled in favor of the plaintiff and awarded her possession of the five pre-zygotes. The court began by reasoning that while the pre-zygotes did not have the legal status of "persons”, they clearly enjoyed a status above that of mere property. The court went on to determine that a husband’s procreative rights in a situation involving in vitro fertilization were no greater than in the case of an in vivo fertilization, such that those rights essentially terminated at the moment of fertilization, making the disposition of the pre-zygotes a matter exclusively within the wife’s unfettered discretion. The court further determined that the informed consent document executed by the parties was not dispositive of the controversy and merely provided that in the event of divorce, a court was to decide the matter. The court also reasoned that the disposition chosen by the parties in "addendum no. 2-1” of the informed consent document was not applicable in "a divorce situation”. Finally, the court determined that the parties’ "uncontested divorce” agreement of June 7, 1993, which never became operative, did not constitute a waiver by the plaintiff of "her right to determine the future of the subject zygotes”. By judgment entered February 23, 1995, the court (Davis, J.) granted the plaintiff "the exclusive right to determine the fate of. the subject pre-embryos”, including their utilization in another attempt to achieve pregnancy. This appeal by the defendant ensued. On May 26, 1995, the judgment was stayed pending the determination of this appeal. For the reasons which follow, we disagree with the Supreme Court’s resolution of the matter and instead find that the parties’ mutual intent regarding the disposition of the pre-zygotes, expressed in the informed consent document executed contemporaneously with the last IVF procedure and in the uncontested divorce instrument, should be given effect.
[155]*155IV
We begin our analysis with the observation that all of the members of this panel, including the concurring and the dissenting Justices, agree that the Supreme Court committed a fundamental error in equating a prospective mother’s decision whether to undergo implantation of pre-zygotes which are the product of her participation in an IVF procedure with a pregnant woman’s right to exercise exclusive control over the fate of her nonviable fetus. It is well settled that the latter authority is premised on the woman’s right to privacy in the area of reproductive choice. That right is set forth in Roe v Wade (410 US 113), a case which may be viewed as "a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection” (Planned Parenthood v Casey, 505 US 833, 857; see, Planned Parenthood v Danforth, 428 US 52). A woman’s established right to exercise virtually exclusive control over her own body is not implicated in the IVF scenario until such time as implantation actually occurs, for it is only then that her bodily integrity is at issue (see, Davis v Davis, 842 SW2d 588, 601 [Tenn], cert denied sub nom. Stowe v Davis, 507 US 911). Prior to implantation, that interest is not a relevant and appropriate consideration, and a court must pursue other analytical avenues in determining whether implantation over the objection of one of the parties should be permitted or precluded. We find that the first such inquiry should be directed at whether the parties have made an expression of mutual intent which governs the disposition of the pre-zygotes under the circumstances in which the parties find themselves.
V
In the case before us, the Supreme Court, Nassau County, and the parties have devoted much effort to discussing the decision of the Supreme Court of Tennessee in Davis v Davis (supra). Decided June 1, 1992, Davis v Davis was the first decision of an appellate court to address the thorny issue of the effect of divorce on cryopreserved pre-zygotes. Indeed, that case bears some strong factual similarities to the matter at bar. Junior Davis and Mary Sue Davis, like the Kasses herein, participated in an IVF program as husband and wife and underwent a number of failed attempts to achieve a viable pregnancy. Junior subsequently filed for a divorce while seven of the parties’ cryopreserved fertilized ova were still in storage [156]*156at a fertility clinic. All matters raised in the divorce action were resolved except for the question of the disposition of the fertilized ova. Mary Sue sought custody of them, initially for the purpose of having them implanted in herself, but, following her remarriage during the pendency of the litigation, for the purpose of donating them to a childless couple. Junior vehemently opposed any implantation. Confronted with this conflict between the procreative rights of the parties, the court in Davis discussed at length the variety of possible analytical approaches which were advocated by authors of diverse legal journals and other publications as appropriate for resolving disputes of this nature. The court found that the gamete providers should be afforded complete control over the disposition of the fertilized ova and that the parties must be considered equivalent gamete providers. Moreover, eschewing the application of any bright-line test in situations where the gamete providers cannot agree on a disposition, the court adopted an analysis in which the respective interests of the parties in attempting and avoiding procreation must be balanced in order to determine which interest should prevail under the particular facts of a given case. The court then found that the interest of Junior Davis in avoiding procreation was greater than the interest of Mary Sue Davis in donating the fertilized ova to a childless couple. The court stated its approach as follows: "the relative interests of the parties in using or not using the preembryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered” (Davis v Davis, 842 SW2d 588, 604, supra).
The weighing of interests employed in Davis constitutes an analysis which may be worthy of some consideration in resolving conflicts between gamete providers over the disposition of their fertilized ova. However, there is ho need to decide whether such an analysis should be adopted in the present case because, unlike the situation in Davis, the parties herein executed an informed consent document and an uncontested divorce instrument in which they unequivocally stated their intent as to the manner of disposition of the subject pre-zygotes. Indeed, throughout its decision, the court in Davis bemoaned the absence of such a statement of mutual intent in that case and clearly stated that the weighing of interests should only be utilized where no such manifestation of intent exists:
[157]*157"At the outset, it is important to note the absence of [a] critical factor [ ] that might otherwise influence or control the result of this litigation: When the Davises signed up for the IVF program at the Knoxville clinic, they did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process” (Davis v Davis, supra, at 590).
"We believe, as a starting point, that an agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors. This conclusion is in keeping with the proposition that the progenitors, having provided the gametic material giving rise to the preembryos, retain decision-making authority as to their disposition.
"At the same time, we recognize that life is not static, and that human emotions run particularly high when a married couple is attempting to overcome infertility problems. It follows that the parties’ initial 'informed consent’ to IVF procedures will often not be truly informed because of the near impossibility of anticipating, emotionally and psychologically, all the turns that events may take as the IVF process unfolds. Providing that the initial agreements may later be modified by agreement will, we think, protect the parties against some of the risks they face in this regard. But, in the absence of such agreed modification, we conclude that their prior agreements should be considered binding. ” (Davis v Davis, supra, at 597 [emphasis supplied].)
"In summary, we hold that disputes involving the disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is [a] dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, [only] then [should] the relative interests of the parties in using or not using the preembryos * * * be weighed” (Davis v Davis, supra, at 604 [emphasis supplied]).
We are in full agreement with the decision in Davis to the extent it requires that where a manifestation of mutual intent exists between the parties, that intent must be given effect by the court. Since we conclude, in accordance with the analysis employed in Davis, that the agreement of the parties is dispositive of the present controversy, no further discussion of the facts of that case is material or relevant.
[158]*158VI
Turning to the record before us, we find that such an unequivocal statement of intent exists in this case by reason of the parties’ execution of the aforementioned informed consent document. Indeed, reading that document as a whole (see, Hudson-Port Ewen Assocs. v Chien Kuo, 78 NY2d 944; Sunrise Mall Assocs. v Import Alley, 211 AD2d 711), it is clear from the tenor of its language as well as from its liberal use of the words "we”, "us”, and "our” that the parties’ very participation in the IVF program is premised on their status as a married couple committed to a single joint decision to use IVF in an attempt to achieve parenthood. Indeed, in paragraph III—"Disposition of Pre-Zygotes”—of Informed Consent Form No. 2, it is expressly stated: "Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law” (emphasis supplied). Moreover, at numerous points throughout the document, the parties, as a married couple, acknowledge their joint right and obligation to provide for the disposition of any stored pre-zygotes in the event that they cannot render such a joint decision at some point in the future. Significantly, the only specific dispositional language in the entire informed consent document appears at page six of that instrument, where the parties jointly state their intention to permit the IVF program to retain the pre-zygotes for approved research and investigation in the event that they are unable to make a decision regarding the disposition of the prezygotes. Since the parties now in fact no longer agree with regard to this matter, they are no longer able to render the single, joint decision regarding the disposition of the prezygotes which the informed consent document contemplated. Accordingly, their prior statement as to disposition, as set forth at page six of the informed consent document, should be given effect according to its clear and unambiguous terms (see, Davis v Davis, 842 SW2d 588, supra; see generally, W. W. W. Assocs. v Giancontieri, 77 NY2d 157). Given these circumstances, we agree with the defendant’s position that the pre-zygotes must be retained and used by the IVF program for scientific purposes, a result consistent with the parties’ expressed wishes.
VII
The plaintiff has posited two arguments, both accepted by the Supreme Court and embraced by our concurring and dissenting colleagues, in an attempt to avoid the foregoing result. [159]*159First, she contends that the statement of intent can only be considered in the event of death or incapacity, since a reference to the dispositional provision at page three of the document is preceded by the statement: "[t]he possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes”. The argument is unavailing. Indeed, there is absolutely nothing in the document to suggest that the parties’ expression of intent should be given effect only in the event of death or incapacity, nor is there any language which precludes the parties’ divorce and their disagreement over continued participation in the IVF program from constituting "unforeseen circumstances” which would render them unable to make a dispositional decision and thus necessitate reference to their prior statement of intent. Rather, the overly narrow interpretation advocated by the plaintiff is refuted not only by the broad language of the dispositional provision itself, but by other provisions of the informed consent document as well. For example, page three also contains the following sentence: "[s]hould we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage” (emphasis supplied). Put another way, the plaintiff and our concurring and dissenting colleagues are treating the "death or any other unforeseen circumstances” language as a condition precedent which has not been fulfilled. They are wrong in doing so. As a general rule, it must clearly appear from the agreement itself that the parties intended a provision to operate as a condition precedent (see, 22 NY Jur 2d, Contracts, § 265; Lui v Park Ridge at Terryville Assn., 196 AD2d 579). If the language is in any way ambiguous, the law does not favor a construction which creates a condition precedent (see, Lui v Park Ridge at Terryville Assn., supra, at 582; Manning v Michaels, 149 AD2d 897).
In view of the foregoing, and in keeping with the spirit and tenor of the entire document, we find that the provision cited by the plaintiff is rationally interpreted to mean that death and incapacity are merely examples of contingencies which will prevent a joint decision and will therefore render consideration of the parties’ expression of intent appropriate, but they are not the only events which will do so.
The plaintiff’s second argument in this regard is that the informed consent document expressly addresses the disposition [160]*160of the pre-zygotes should a divorce occur, and thus renders the parties’ manifestation of mutual intent in "addendum no. 2-1” inapplicable. The sentence upon which she relies to support this assertion states: "[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”. Contrary to the plaintiffs contention, this language does not constitute a dispositional provision at all. Rather, it is intended to confer jurisdiction on the court (an interpretation which the plaintiff herself advocated in the Supreme Court), and it is clearly designed to insulate the hospital and the IVF program from liability in the event of a legal dispute over the prezygotes arising in the context of a divorce. Significantly, the quoted provision does not mandate any particular disposition of the pre-zygotes—it merely provides that they will not be released from storage absent a court order directing same. Hence, while this provision may govern the jural relationship between the parties and the IVF program, it does not alter the fact that the parties intended that if they were unable to agree upon a disposition of the pre-zygotes in the future, the prezygotes should be retained by the IVF program for research purposes. This provision relative to divorce did not confer on the court the right to ignore the unambiguous agreement of the parties as to the disposition of the pre-zygotes and to de novo create its own disposition based on what it believed was a more equitable determination. The Supreme Court did not have this authority, nor do we.
In short, the plaintiff may not invoke a provision drafted for the purpose of protecting the hospital and the IVF program to subvert a clear and unequivocal expression of intent which she and the defendant made together contemporaneously with the last IVF procedure. At most, the divorce provision at page three of the informed consent document would permit the parties to modify their statement of intent by entering into a "property settlement” which included a new joint decision regarding the disposition of the pre-zygotes. Since no such settlement was in fact made and the parties fully anticipated that the courts would enforce their agreement, the manifestation of their intent in the informed consent document should be viewed as controlling.
We further note that even if one provision of the informed consent document could rationally be perceived as creating an ambiguity regarding the circumstances under which the par[161]*161ties’ statement of mutual intent was to apply, any such ambiguity may be resolved by reading that document as a whole to determine its purpose and intent (see, Hudson-Port Ewen Assocs. v Chien Kuo, 78 NY2d 944, 945, supra; see also, W.W.W. Assocs. v Giancontieri, 77 NY2d 157, supra; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169). Viewing the informed consent document in its entirety, we conclude that, regardless of whether it is sufficient to constitute a binding contract, it provides irrefutable evidence that the parties intended to have the IVF program retain the stored pre-zygotes for study in the event that, as here, they were unable to jointly agree on continued participation in the program. Indeed, any doubts as to how the parties viewed the informed consent document they signed, particularly as to their intent in providing for the disposition of the remaining pre-zygotes, are dispelled by the actions and words of the parties in drafting and signing the "uncontested divorce” instrument less than one month after they executed the informed consent document. In that uncontested divorce instrument, the parties expressed their mutual desire to divorce and further reaffirmed their intention that the pre-zygotes should be disposed of by the IVF program in the manner set forth in their informed consent document, and that neither party would seek possession of them. While the uncontested divorce instrument never became operative, it constitutes compelling evidence that the parties, in executing the informed consent document, intended to authorize the use of the pre-zygotes by the IVF program for research purposes in the event that they could no longer agree on their disposition because of divorce or any other reason. These repeated statements of intent by the parties merit serious consideration and are entitled to great deference.
VIII
In addition to the clear right of the defendant to obtain specific performance of the agreed disposition of the prezygotes, there is another, more fundamental flaw in the proposal of the dissent to remit this matter for further proceedings. Contrary to the dissenters, no member of this Bench has set forth any new evidentiary thresholds for the plaintiff to meet. Each analytical approach and evidentiary standard advocated in the plurality, concurring, and dissenting opinions is taken directly from the discussion by Justice Daughtrey in the decision in Davis v Davis (842 SW2d 588, supra). These evidentiary thresholds were well known and extensively discussed [162]*162in academic and legal literature prior to the advent of this litigation. Moreover, in the memorandum of law submitted by the plaintiff to the Supreme Court arid iri her own Sripporting affidavit, the plaintiff argued that these pre-zygotes represent her best and perhaps last chance to become pregnant. This was the very argument expressly suggested and anticipated in Davis. Although the plaintiff submitted 170 pages of exhibits, including her complete medical records, even the dissenters agree that the record is "insufficient to permit a fair balancing of the salient considerations”. To the extent that this statement constitutes an acknowledgment that there has been a failure of proof on the plaintiff’s part, we are in agreement with our colleagues. In short, despite her awareness of the balancing test employed in Davis, and her express reliance on that decision at the Supreme Court, the plaintiff has not provided sufficient proof to establish any right to custody of the frozen pre-zygotes in the absence of the consent of her former husband.
It is beyond question that unless public policy is violated, the parties to any litigation are free to chart their own procedural course (see, Mitchell v New York Hosp., 61 NY2d 208, 214; T. W. Oil v Consolidated Edison Co., 57 NY2d 574, 579-580), and they may fashion the basis upon which a particular controversy is to be resolved (see, Cullen v Naples, 31 NY2d 818, 820). Here the parties did precisely that, and the dissent fails to identify any public policy interest which was violated thereby. On January 9, 1995, the attorneys for both sides submitted a letter to Justice Roncallo agreeing that the matter should be determined on the submissions. On January 17, 1995, the plaintiff’s attorney indicated that the last affidavit had been submitted. The record upon which we must rule was thereby established. As the dissenters state, that record is insufficient to afford the plaintiff the relief she seeks. However, since the parties charted their own course, neither the plaintiff nor the dissenters can now change the rules simply because they are unhappy with the outcome (see, Rector of St. Bartholomew’s Church v Committee to Preserve St. Bartholomew’s Church, 56 NY2d 71, 76).
IX
In conclusion, we find that the decision to attempt to have children through IVF procedures and the determination of the fate of cryopreserved pre-zygotes resulting therefrom are intensely personal and essentially private matters which are appropriately resolved by the prospective parents rather than the courts. Accordingly, where the parties have indicated their [163]*163mutual intent regarding the disposition of the pre-zygotes in the event of the occurrence of a contingency, that decision must be scrupulously honored, and the courts must refrain from any interference with the parties’ expressed wishes. The documentary evidence overwhelmingly demonstrates that the parties in this case made such a clear and unequivocal choice, and the plaintiff’s subsequent change of heart cannot be permitted to unilaterally alter their mutual decision. Accordingly, 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 of the five pre-zygotes shall be in accordance with paragraph 2 (b) of Addendum No. 2-1 of the parties’ informed consent agreement.