Assisted reproduction refers to a number of procedures that may be utilized to achieve pregnancy including fertility treatments, in vitro fertilization and surrogacy. In vitro fertilization entails removing a woman’s eggs from her body and implanting the eggs with sperm to create an embryo. Those embryos can be stored until ready for use. However, couples should be aware of what happens to the embryos if they subsequently separate prior to using them. In Pennsylvania, frozen embryos are considered marital property and hence, subject to division in a divorce. The Pennsylvania Superior Court stated its position on the marital status of frozen pre-embryos in Reber v. Reiss, 2012 PA Super 86. In Reber, Wife wanted to use the frozen pre-embryos in order to have children of her own whereas Husband wanted the frozen pre-embryos either destroyed or donated for research.
Prior to reaching its decision, the Pennsylvania Superior Court considered how other states have dealt with this issue. Some states have focused on whether there is a prior agreement between the parties concerning disposition of the pre-embyros in the event of divorce and if so, will uphold the agreement as enforceable. Other states have held the enforcing such an agreement is a violation of public policy and have declined to do so. Another approach is a mutual consent model requiring both parties to agree on disposition, however, Pennsylvania did not find this model feasible since parties would not be in court in the first place if they could agree. The approach that was ultimately adopted in PA calls for the court to balance the interests of the parties.
In Reber, the court found that Wife’s interest in procreation using the frozen pre-embyros outweighed Husband’s interest against procreation since evidence established that the pre-embryos were likely Wife’s only opportunity to procreate along with testimony that Wife would allow Husband to be involved and wouldn’t pursue support in response to the concerns raised by Husband. The court did acknowledge that the party against procreation should normally prevail in a balancing test, however, due to the unique facts of the case, the scales tipped in Wife’s favor. It also seems that the court would’ve likely enforced an agreement on the issue if there had been one. Accordingly, parties who intend to undergo in vitro fertilization should draft a clear, unambiguous agreement as to the disposition of embryos upon separation, divorce or death, or else be subject to a balancing approach by the court.