The Superior Court yesterday issued an opinion affirming a trial court’s decision to award frozen embyros to the wife as part of her equitable distribution of marital property, based upon her testimony that the embryos are her only reasonable chance to procreate after surviving cancer treatments that rendered her infertile. The trial court rejected Husband’s argument that he did not wish to have a child with his ex-wife or to incur the financial obligation of a child.

In Reber v. Reiss (2012 Pa.Super. 86), the Superior Court observed that there is no Pennsylvania precedent on the issue of what to do with frozen embryos when spouses divorce. The courts of other states have considered three approaches. One approach is the “contractual” approach, in which the terms of the IVF contract might dictate what happens to the embryos upon the death or divorce of the donors. Only one state, Massachusetts, has refused to honor a contract that would have awarded the embryos to the ex-wife, forcing the ex-husband to become a father against his wishes.

Another approach is the “shared consent” approach adopted by Iowa’s highest court, who directed the ex-spouses to come up with an agreement as to how the embryos would be distributed.

The third approach is the “balancing of interests” test, in which the courts would decide the fate of the embryos based upon the competing interests of the ex-spouses. Our Superior Court found that the trial court had adopted this approach in its decision, which was affirmed. The Superior Court specifically considered the wife’s interest in procreating and the husband’s interest in avoiding procreation. The Court agreed with the wife that adoption or foster parenting were not adequate substitutes for procreation, and held that medical evidence was unnecessary to prove that wife could not conceive naturally. As for Husband’s objection to having more children, the Superior Court was satisfied with Wife’s promise to include Husband in the child’s life if he wished, or make all reasonable efforts to support the child without his assistance if he did not wish to be involved. (The Court pointedly indicated that Mother’s promise to refrain from seeking child support might not be enforceable.) Ultimately, the Superior Court upheld the trial court’s decision, finding that the Wife’s interest in procreating was greater than the Husband’s interest in avoiding procreation.