The Pennsylvania Superior Court recently decided its first case addressing the allocation of frozen pre-embryos between divorcing spouses. The pre-embryos were created as part of the parties’ in vitro fertilization process shortly after wife was diagnosed with breast cancer and would likely be unable to reproduce after treatment. The appeal was brought by the husband from the trial court’s decision to award wife the thirteen (13) pre-embryos in equitable distribution. The parties in Reber v. Reiss (2012 PA Super 86; 2012 WL 1202039 (Pa.Super.))


The Superior Court, like the Master and trial court before it, employed a balancing test to weigh husband and wife’s respective positions on how to equitably divide the pre-embryos. Other states have used a variety of methods to decide similar issues; states such as New York, Texas, and Oregon take a contract approach and examine the language of the fertility clinic contracts. Those courts found that the agreements addressing the disposal of the pre-embryos in the event of divorce or death to be enforceable agreements. Massachusetts, however, took a slightly different tact and found that the agreement the parties addressing the disposal of pre-embryos in the event of their separation was never intended by the parties to be an agreement between the two of them, but between the parties, together, and the clinic. Consequently, the Massachusetts Supreme Court declined to enforce the agreement. Many other states, like Pennsylvania, however, have opted to employ a balancing test to determine which party should keep the pre-embryos.


The “balanced approach” used in Pennsylvania was defined by the Tennessee Supreme Court in 1992 (the first state to employ this test to fertility issues) as an analysis that required the court to “weigh the interests of each party to the dispute…in order to resolve the dispute in a fair and responsible manner.” Davis v. Davis, 842 S.W.2d 588 (Tenn.1992). New Jersey applied the balancing approach in 2001 when deciding that wife’s “right not to procreate or be forced into parenthood outweighed husband’s right to procreate where husband could still procreate without wife’s involvement.” Reber v. Reiss, 2012 PA Super 86 (Pa.Super. 2012) citing, J.B. v. M.B., 783 A.2d 707 (N.J.2001).


In deciding the Reber case, the Superior Court first examined the language of the informed consent the parties signed with respect to the storage of the pre-embryos. Husband’s position was that the agreement required the destruction of the embryos at the end of three years, however, the Court ruled that the agreement was actually between the parties and the cryopreservation facility, rather than an agreement between husband and wife to destroy the pre-embryos. Husband’s appeal also raised issues as to whether the trial court had abused its discretion in accepting wife’s testimony that she could not conceive in any other method besides IVF without sufficient medical testimony to substantiate her claim. The Master disregarded her testimony on the issue, however, the trial court accepted her testimony as sufficient to prove she was incapable of having children after her extensive cancer treatments and that the parties participation in IVF was designed to allow them the chance to have their own biological children.


The Superior Court’s balancing approach then considered wife’s age (40) and the distinction between wife’s interest in procreation versus achieving any type of parenthood recognizing “that the ability to have biological children and/or be pregnant is a distinct experience from adopting.” The Court viewed interests in using the pre-embryos as compelling and the options that provides her with what is likely her only chance at parenthood.


Husband’s interests where examined in light of the facts which led to the existence of the pre-embryos, namely, he implicitly agreed to procreate with wife by agreeing to undergo IVF; he voluntarily provided sperm to Wife for the IVF process; and the use of the pre-embryos was never made on the contingency that the parties remained married. Though the trial court declined to delve into the financial aspect of the case, argument by counsel highlighted in the Superior Court’s holding reflects wife’s willingness to forego child support, craft a financial structure which would protect husband from paying child support, and identify friends and family as being capable and willing to step in to raise the child should she pass away. The Court examined husband’s argument that it violates public policy to force him into procreation, but the Court could not find a policy to that end, nor case law to guide them on this issue. 


Ultimately, the Superior Court upheld the trial court’s decision that wife’s interests outweighed husband’s and that the pre-embryos represent wife’s only opportunity to achieve biological parenthood and parenthood in any capacity. That interest outweighs those of husband and she was awarded the thirteen (13) pre-embryos through equitable distribution, thereby establishing precedence in Pennsylvania for applying a balancing test approach to the equitable distribution of pre-embryos.