Thursday, January 24, 2013
In the April 2012 decision in Reber v. Reiss, 42 A.3d 1131, 2012 Pa. Super 86, the Pennsylvania Superior Court decided how to divide in vitro fertilization (“IVF”) created embryos during an equitable distribution hearing as part of a divorce. Husband and Wife were married in 2002, and in 2003 Wife was diagnosed with breast cancer and subsequently underwent aggressive treatment. After Wife’s diagnosis, the parties underwent IVF treatment to preserve embryos, because it was unlikely that Wife would be able to conceive after the cancer treatments. Husband filed for divorce in December 2006 and had a child with another woman in January 2008. Wife, 44 years old at the time of the hearing, asked for all thirteen pre-embryos that were created during IVF for implantation. The trial court and the parties agreed that the embryos were marital property and were thus subject to equitable distribution.
The parties went before a Master, but they did not settle. Therefore, the Master filed an Amended Report and Recommendation for the trial court. The Master wrote that the pre-embryos should be given to Husband so that he can direct the storage center to destroy and discard them. Wife filed an exception (a type of appeal) to this report and they went to trial in November 2010. The trial court stated that a court usually finds in favor of the party wishing to avoid procreation. However, the court found that Wife’s inability to be a biological parent without the pre-embryos was an interest that outweighed Husband’s desire to avoid procreation. Husband appealed.
Equitable distribution orders are only reversed if there is an abuse of discretion. In this case, Husband and Wife were separated and disagreed on whether the pre-embryos should be awarded to Wife for implantation or awarded to Husband for destruction.
At the time of trial, Pennsylvania had no other case law on this issue. The Superior Court looked to other states that have addressed this issue and found three types of analyses: the contractual approach, the contemporaneous mutual consent approach, and the balancing approach. In this case, both the Master and the trial court used the balancing approach, because neither Husband nor Wife signed the portion of the consent form related to the disposition of the pre-embryos in the event of divorce. The balancing approach weighs the interests of the parties.
The issue in this case was different from the cases in other states because, here, Wife had no ability to procreate biologically without the use of the pre-embryos. Husband argued that the trial court erred in finding for Wife because she did not produce any medical evidence or medical expert to verify that she could not procreate biologically. However, the trial court reasoned that it was well known that chemotherapy and radiation, both of which Wife endured for multiple rounds, threatened fertility and was satisfied with Wife’s testimony that her doctors had informed her it would be almost impossible to become pregnant naturally.
Husband also argued on appeal that Wife had other options available to her, such as adoption and foster parenting, if she wished to become a parent. However, the Superior Court agreed with the trial court in the rationale that adoption was not an available option given Wife’s past medical history and the likeliness that adoption agencies would not be willing to allow her to adopt a child.
Furthermore, Husband made the argument that he never intended to procreate with Wife and the embryos were just a “safeguard.” But the Superior Court agreed with the trial court’s analysis that Husband implicitly agreed to procreate with Wife when he agreed to undergo IVF and provided sperm for the creation of embryos.
The Superior Court also looked at whether or not Husband would be financially responsible for a child he did not want, but that was biologically his own. In Pennsylvania, a parent cannot take away a child’s right to support, but the court said it would later consider Wife’s vow to Husband that she would not seek child support from him when the issue became an actual case or controversy before the court, i.e. when there was a child born.
Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC. Edited by Elizabeth A. Bokermann, Esquire, associate attorney.