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Case Notes: Frozen Embryos as Marital Property

In Reber v. Reiss, 42 A.3d 1131 (Pa. Super. 2012), the Pennsylvania Superior Court dealt with a question of first impression: what should happen to fertilized, frozen embryos at divorce? May Wife receive them to implant and give birth, or should Husband receive them to be destroyed?

In Reber, Wife was diagnosed with breast cancer in 2003. Doctors advised the parties to undergo in vitro fertilization, since the cancer treatment may make it impossible for Wife to give birth later. Wife delayed her cancer treatment, and the parties created and froze thirteen embryos. Husband filed for divorce in 2006, met another woman and had a child. Wife is incapable of having children. The trial court determined:

"Ordinarily the party wishing to avoid procreation should prevail, in our balancing of the facts unique to this case, we find that Wife's inability to achieve biological parenthood without the use of the pre-embryos is an interest which outweighs Husband's desire to avoid procreation." Husband appealed to the Superior Court.
Given that this question is one of first impression, the Superior Court looked to the reasoning of other states. The Court noted that the trial court had used a "balancing test" approach as Husband and Wife had not signed any agreements regarding the disposition of the embryos at the time of creation. The Court agreed that in the absence of an agreement between the parties regarding the disposition of the embryos, the Court is to use a balancing test.

In this particular instance, Wife had no recourse to biologically have her own children other than the use of these embryos. Husband's interest against procreating with Wife was not sufficient to defeat Wife's superior desire to have her own children. The embryos were the marital property of Wife.

It is not unusual for extraordinary questions to arise in a divorce case. That is why every divorcing party should obtain experienced and passionate legal counsel from a Pittsburgh divorce lawyer who is able to navigate novel issues.