May 14th, 2015

Who Owns the Frozen Embryo?

The technology needed to recreate frozen embryos has been around since the 1980s. What we still don’t have thirty years later is a definitive answer to what happens to those frozen pre-embryos when couples split. What are they? Should they be treated as children or as property? The one case in Pennsylvania that has addressed this issue, Reber v. Reiss, (2012 Pa.Super. 86) involved a review of a trial court decision that treated frozen pre-embryos as property that were awarded to wife, in a divorce, as part of the order dealing with equitable distribution.

As this was a case of first impression, the Pennsylvania Superior Court looked to other jurisdictions, New York, Texas, Oregon, Massachusetts, Tennessee and New Jersey and examined the different approaches those courts and jurisdictions utilized. Ultimately, the Pennsylvania Superior Court decided that a balancing approach, where the interests of the parties are evaluated and weighed, is most appropriate. In agreeing that the balancing test was the appropriate one to use here, the Superior Court noted that there was no specific contractual provision that addressed what would happen to the pre-embryos in the event of death or divorce. Without that kind of specific agreement, the court concluded that a balancing test was the most appropriate one. In this particular case, the wife had cancer and, as a result of chemotherapy and aggressive treatment, she would not be able to have children going forward. Accordingly, the court decided that her interest, being able to have a child, outweighed his interest in not having more children.

The court did not reach a decision on what would happen if wife sought an award of child support in the future but it does seem fairly clear that in order to avoid the uncertainty of a balancing of the interests approach to resolving these kinds of disputes, careful consideration should be given to addressing what happens to these pre-embryos in a prenuptial agreement or in a contract entered into and signed by both parties at the time they are created.

It is clear that the law in this area has yet to catch up with the technology and it is always a good idea to consult with a knowledgeable attorney.

Allen I. Tullar, Chair of the Matrimonial and Family Law Group, regularly counsels individuals in divorce, custody and child support matters.  As a Mediator, Allen helps families face difficult circumstances while easing the burden of legal expenditures and added duress.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.