Through the in vitro fertilization ("IVF") process, medical professionals are able to "cryopreserve," or freeze embryos to use at a later date. This means that the woman's egg has already been fertilized outside of her body, and the resulting embryo is placed in storage for the date and time when the Mother chooses to have the embryo transferred to the uterus of a surrogate, or to the mother's uterus, so that the child can be born. These embryos are often cryopreserved for years until the Mother decides she wants to have a baby.
The issue then arises: if a couple gets divorced while the Mother still has embryos in the cryopreservation process, what happens to these embryos during the Pennsylvania equitable distribution process?
The case of Reber v. Reiss, 2012 Pa. Super 86 (Pa. Super. Ct. 2012) answers this question in Pennsylvania. In Reber, Wife was diagnosed with breast cancer at the age of 36 and was advised to undergo the IVF process in order to preserve her eggs to have children at a later date. Wife then underwent cryopreservation prior to receiving chemotherapy and preserved a number of embryos for potential use at a later date. Fast forward three years-Husband files for divorce in Pennsylvania and seeks to destroy the embryos as part of the equitable distribution process.
The court in Reber then had to determine how to handle this novel issue for equitable distribution in Pennsylvania. The Reber court applied a balancing approach to analyze this issue, looking at the interests of both parties (Husband and Wife) and balancing their respective interests. The court stated that although it would typically find for the party who is wishing to avoid procreation (Husband in this case), but here, Wife prevailed as her interest in having children and her inability to achieve biological parenthood outweighed Husband's interest in avoiding procreation. However, it was significant to the Court's decision that Husband would not have any financial responsibility nor any involvement in the future child's life.
Interestingly, a Pennsylvania prenuptial agreement can address these issues. The parties can decide what they want to do with the embryos upon divorce so that this issue does not cause contention during the equitable distribution process.
If you have questions about assisted reproductive technology in Pennsylvania, contact our Pittsburgh Surrogacy Attorneys today! We can assist you throughout this process, and put language in your Pennsylvania prenuptial agreement to address these issues in the event of a divorce.