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Post-Divorce Parenthood: Frozen Embryos Thawed Despite Ex-Husband's Opposition




by:
James W. Cushing
Law Office of Faye Riva Cohen, P.C. - Philadelphia Office

 
September 25, 2013

Previously published by The Legal Intelligencer on September 2013

The Superior Court of Pennsylvania has recently heard a matter of first impression regarding the distribution of frozen embryos in a divorce in the matter of Reber v. Reiss, 2012 Pa.Super. 86 (2012).  As in vitro fertilization (“IVF”) procedures and the like are becoming increasingly common, and, the rate of divorce shows no signs of ebbing, the issues presented in Reber will continue to be quite relevant in the foreseeable future.

The parties in Reber were married in 2002.  Unfortunately, the wife, Reiss, was diagnosed with fairly advanced cancer at the age of 36 in 2004.  Due to her age and the detrimental effect intense cancer treatments (e.g.: radiation and chemotherapy) can have on a woman’s ability to procreate, the parties agreed to engage in IVF in order to ensure the greatest odds of allowing Reiss to have biological children after her ordeal with cancer was finished.  The IVF procedure produced thirteen (13) embryos using the reproductive material from both parties and they were cryopreserved. In 2006 the Husband, Reber, filed for divorce, and during the course of the divorce litigation the parties agreed that frozen embryos are marital property subject to equitable distribution.

How frozen embryos are to be distributed in a divorce was an issue of first impression, and, as a result, the Court had to look to the courts of other states for guidance as to how to rule.  Upon review of the other states’ methods to resolve the distribution of frozen embryos, the Court concluded that there are three (3) prevailing methods to resolving the quandary: (1) look to any possible agreement between the parties before the divorce was filed regarding how the embryos would be distributed in the future; (2) encourage mutual consent through an agreement contemporaneous with the divorce; and, (3) balance the interests of the parties.  Among the interests to be weighed include concerns over being a single parent, concerns over the potential child knowing the identity of his/her parent(s), concerns regarding who, how, when, and whether financial support for a child would be expected, concerns regarding the birth and rearing of an unwanted child, concerns regarding forcing someone to be parent against his/her will, and/or concerns regarding diminishing opportunities to have a genetically related child.

In the instant case, the Court found that there was no agreement from the past and no agreement contemporaneous with the divorce action, therefore it felt obliged to engage in an analysis of weighing the interests of the parties.  It should be noted that the Husband argued there was an agreement which predated the divorce, namely the consent form executed by the parties with the IVF provider, and the terms of that agreement should control in the divorce.  The agreement with the IVF provider stated that the provider would not store the frozen embryos for more than three (3) years, presumably destroying them at or after the three (3) years’ time.  However, much to the consternation of the Husband, the IVF provider did not destroy the embryos but continued to store them instead.  The Court ruled that the above-described agreement was not between the Husband and Wife, but between the parties and the provider.  Indeed, further, by its terms, the agreement was simply for how long the embryos would be held in storage by the provider, it was not an agreement as to whether the parties wanted the embryos destroyed. Therefore, the Court went forward with the weighing of the parties’ competing interests.

The Wife was interested in preserving the embryos.  At the trial of this matter, the Wife offered testimony as to her medical condition (especially surrounding the cancer), her age, her continued viability to become pregnant, and the medical justification for undergoing IVF (namely that the cancer treatments could have irreparably damaged her reproductive organs).  The Court ruled that Wife presented sufficient evidence to support the conclusion that it would be highly unlikely she would be able to become pregnant due to her age and the condition of her health; the Court further ruled that Wife did not need to present medical evidence to establish her alleged unlikelihood of becoming pregnant in the future.  Finally, the Court nearly ruled, through implication, the facts of her age and health condition causing future pregnancy to be unlikely could be found as a matter of judicial notice instead of strict evidence. Husband argued that adoption and/or fostering a child are viable options which are available to Wife, but the Court ruled that these options are no substitute for the experience of going through pregnancy and having a biologically related child.  The Court also found that a woman of her age and health would face significant obstacles to either adoption or fostering as well, which makes allowing her to use the frozen embryos to become pregnant her best and most viable option of having a child of any kind.

On the alternative side, Husband argued that, due to his experience as an adoptee himself, he did not want any of his potential children raised fatherless; however Wife countered, indicating that she would be more than willing to allow Husband to become a participating father to any children which result from the IVF.  Husband then argued that he never intended to actually have a child with Wife and he participated in IVF as only a “safeguard;” the Court did not find Husband’s argument persuasive as it believed that Husband implicitly agreed to procreate simply by the act of agreeing to participating in IVF.  Husband then argued that the child(ren) would be a financial burden for him.  In response, Wife argued that she would do “whatever it takes to make sure there will be no financial repercussions [to Husband]” and that Wife agreed, on the record, to “an indefinite alimony award of a dollar a year modifiable in the event [she] ever filed for child support and...specified that amount will be 30 percent higher than any child support award agreed to.”  Finally, Husband argued that he simply does not want a child and does not Wife forcing him into unwanted fatherhood.

After reviewing all of the arguments and evidence described above, the Court ultimately ruled that, upon weighing the interests of the parties, the interests of Wife having the opportunity to have biological children using the embryos, which, as the Court found, is likely her only viable opportunity to have children, outweighed all of Husband’s expressed interests, all of which were answered and sufficiently allayed by Wife.

Reber is a case of first impression and it will set the tone for future cases as to the analysis required and appropriate for determining how to distribute frozen embryos in a divorce action.  As using technology to assist in pregnancy becomes more common and more possible, a case such as Reber will be the first of many resolving disputes over the possession and use of frozen embryos after a divorce.


 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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