A couple decided to undergo an In Vitro Fertilization (IVF) procedure, during which joint embryos were created and frozen. Prior to commencing the procedure, the couple signed an agreement requiring mutual consent at every stage of the process up to the transfer of the embryos into the uterus. However, before the transfer of the embryos, the male partner refused to consent to the embryos transfer, despite having expressed support for the transfer throughout the entire process.
The Supreme Court held that the male partner's conduct during the procedure was insufficient to alter the contract. While the law recognizes the possibility of modifying a written agreement through subsequent conduct, such conduct must reflect a clear and explicit intent to be bound by this deviation. That is, it requires a definitive will, a genuine intention to change the existing contract, and decisiveness. In this case, although the male partner expressed support for the procedure and encouraged his partner, at no point did he explicitly waive the contractual provision requiring continuous consent for the use of the fertilized eggs. Hence, it cannot be argued that the contract was amended by conduct.