Divorcing couple battles over frozen pre-embryos

For the first time in Pennsylvania, an appeals court was asked to decide which spouse took possession -- and controlled the fate -- of frozen pre-embryos created from the Husband's sperm and the Wife's eggs.

Complicating the question was the facts that the Husband did not want to have children with his Wife and the Wife was no longer able to bear children due to cancer.

The Superior Court balanced the Husband's right not to become a parent against his will, with the Wife's right to procreate as the couple had apparently intended years earlier when the pre-embryos were created.

The court decided that the Wife's interests came first, and that she should be allowed to keep the pre-embryos to have the couple's children.

The couple originally decided on the in vitro process after learning Wife had cancer. The court accepted testimony from the Wife, who delayed her cancer treatments for several weeks while the pre-embryos were created, that she could no longer bear children and was likely ineligible for adoption.

Weakening Husband's argument was the fact that after seperating from his Wife, he had a child with his new girfriend. So the Husband was enjoying his right to procreate but refusing to extend that same opportunity to his Wife. At the same time, Husband objected to the pre-embryos being donated to a childless couple, as he testified he felt it unfair for children to be adoptive. He also felt it was risky to place the pre-embryos with a couple who might later divorce.

Clearly, the probable fate of the pre-embryos would be destruction if they were awarded to the Husband, although this outcome was not explicitly noted by the appeals court. 

The question of the pre-embryos' fates was decided under the state divorce law, as they are considered marital property. The court, when issuing its ruling on April 12, 2012, implied that the state Legislature should consider enacting a law to address this type of situation. The Superior Court ruling, Reber v. Reiss, 2012 PA Super 86, confirmed a similar decision by the judge who first heard the case in Chester County Court.

 

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