With the advent of reproductive technology, divorcing couples in Pennsylvania and around the country are not only compelled to grapple with the question of who should have custody of their living children, but also what to do with their prospective children. The Missouri court of appeals is grappling with just that question as they hear arguments between a husband and wife over the fate of two frozen embryos created via In Vitro Fertilization. This dispute is between a former husband and wife over whether the woman should be permitted to have these embryos implanted and carry them to term.
Cases such as this raise serious questions of law and morality such as when life begins and whether someone can be “forced” into parenthood. This case is unique, but courts in various states have grappled with this issue and as a result, many IVF contacts have begun to incorporate clauses addressing what is to be done with the embryos in the event of a divorce.
However, many cases end up in court as most couples planning on undergoing IVF do not think about the issue of divorce in advance. Courts in many states including Pennsylvania have applied a balancing approach in an attempt to balance the interests of the Husband and Wife to determine who is most entitled to decide what happens to the embryos. In Pennsylvania, Reber v. Reiss was decided in 2012 by the Pennsylvania Superior Court. This case is particularly interesting because there was a consent form, but the parties had not signed a relevant section relating to disposition upon divorce, the facts of the case were particularly emotional, and the Pennsylvania court held that the constitutional rights of Wife, who wanted to procreate, outweighed the Husband’s right not to procreate.
In choosing the balancing approach, the Pennsylvania court had to weigh Husband and Wife’s rights against each other. The facts of the case are particularly compelling and provide that Wife, as the party wishing to procreate, has far more to lose if the court rules in favor of Husband. Wife was diagnosed and treated for very aggressive cancer that left her sterile. Prior to beginning her cancer treatment, she underwent IVF procedures to extract eggs to be fertilized by husband’s sperm for future use by the parties. Husband, during the trial, explained that he should not have to father Wife’s child, and the law was in his favor to dispose of the embryos. Even more striking, in the months after separating from Wife, Husband had a child with another woman, and it concerned the court that Husband was attempting to prevent Wife from exercising her only option to have a biological child of her own, while, he himself has one.
The court relied heavily on the argument that Wife will never be able to achieve biological parentage but for the frozen embryos and also relied heavily on her representation that she would do everything in her power to never seek financial support from Husband. The court emphasized the presumption that the party against procreation should prevail, but suggested that cases of this sensitive nature should be handled on a case-by-case basis, rather than with a strict, emotionless analysis. Although Reber has been heavily criticized in the legal community, it provides Pennsylvania couples with comfort in knowing that their IVF decisions made months or even years before the parties may ever see the inside of a courtroom are not decisive to the case.
If you’re considering undergoing IVF and you have questions about how divorce may impact that, contact our Western Pennsylvania office today!