Reber v. Reiss
42 A.3d 1131, 2012 Pa. Super. 86, 2012 Pa. Super. LEXIS 167 (2012)
Rule of Law:
When divorcing parties have cryopreserved pre-embryos and lack a prior agreement or contemporaneous mutual consent regarding their disposition, courts apply a balancing test that weighs each party's interests in procreation against the other's interests in avoiding procreation, giving significant weight to a party's unique inability to achieve biological parenthood through other reasonable means.
Facts:
- Bret Howard Reber (Husband) and Andrea Lynn Reiss (Wife) married on October 12, 2002.
- In November 2003, Wife was diagnosed with breast cancer and advised to undergo in vitro fertilization (IVF) to preserve her ability to conceive a child before commencing cancer treatments.
- Wife deferred her cancer treatment for several months to accommodate the IVF process.
- In February and March 2004, Husband and Wife underwent IVF, resulting in the production of thirteen pre-embryos using Husband’s sperm and Wife’s eggs.
- The pre-embryos were cryopreserved and stored with Reproductive Science Institute of Suburban Philadelphia, P.C. (RSI).
- After IVF, Wife proceeded with extensive breast cancer treatments, including two surgeries, eight rounds of chemotherapy, and 37 rounds of radiation, after which she was led to believe she could not have children naturally.
- On December 28, 2006, Husband filed a Complaint in Divorce.
- Approximately 18 months after separating from Wife, Husband’s biological son was born with another woman on January 18, 2008.
Procedural Posture:
- Husband filed a Complaint in Divorce on December 28, 2006.
- Husband filed an Amended Complaint in Divorce on July 7, 2008.
- Husband filed a Motion for the Appointment of a Special Master on January 27, 2009.
- Master Lynn Snyder was appointed on February 9, 2009, and conducted a trial on February 22, 2010.
- On August 11, 2010, Master Snyder filed an Amended Report and Recommendation, which provided that the pre-embryos be awarded to Husband for destruction.
- Wife filed one Exception to the Master's Amended Report on August 25, 2010, challenging the disposition of the pre-embryos.
- The trial court heard oral argument on Wife’s exception on November 10, 2010.
- The trial court concluded that Wife’s inability to achieve biological parenthood without the pre-embryos outweighed Husband’s desire to avoid procreation, and it entered a final decree awarding the pre-embryos to Wife as part of the order of equitable distribution.
- Husband filed a timely notice of appeal to the Superior Court of Pennsylvania.
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Issue:
When divorcing parties have cryopreserved pre-embryos and no prior agreement or contemporaneous mutual consent regarding their disposition, does a court err in applying a balancing test that awards the pre-embryos to a party who has no other reasonable means of achieving biological parenthood, even if the other party opposes procreation?
Opinions:
Majority - Strassburger, J.
No, the court did not err in applying a balancing test and awarding the pre-embryos to Wife, as her unique circumstances demonstrated a compelling interest in procreation that outweighed Husband's interest in avoiding procreation. The court affirmed the trial court's decision, finding that a balancing approach is the most suitable test when parties to an IVF procedure divorce without a prior agreement or contemporaneous mutual consent regarding the disposition of cryopreserved pre-embryos. The court considered three approaches adopted by other jurisdictions—contractual, contemporaneous mutual consent, and balancing—and concluded the balancing approach was appropriate here because the parties had not completed the disposition section of their consent form and could not agree. Applying the balancing test, the court found Wife's interests compelling, noting that the pre-embryos likely represented her only chance at genetic parenthood due to her breast cancer diagnosis, subsequent treatments (chemotherapy and radiation), and age. The court distinguished genetic parenthood and pregnancy from adoption or foster parenting, acknowledging them as distinct experiences, and found practical obstacles for Wife in pursuing adoption. Regarding Husband's interests, the court found his concerns about the child not knowing its biological father were ameliorated by Wife's willingness to allow his involvement. Husband's claim that his participation in IVF was merely a 'safeguard' for Wife was unpersuasive, as IVF's inherent purpose is procreation. While acknowledging Husband's financial concerns, the court appropriately deemed Wife's 'vow' not to seek support as speculative and did not rely on it, recognizing that a parent cannot bind a child's right to support. Ultimately, the court concluded that in the absence of specific Pennsylvania public policy or legislative guidance on forced procreation in these circumstances, Wife's unique and limited opportunity for biological parenthood outweighed Husband's desire to avoid procreation, justifying the award of the pre-embryos to Wife.
Analysis:
This case establishes a significant precedent in Pennsylvania, adopting the balancing approach for resolving disputes over cryopreserved pre-embryos in divorce cases where no prior agreement exists. It underscores the judiciary's role in addressing novel issues arising from advancements in reproductive technology. The decision places substantial emphasis on a party's unique inability to achieve biological parenthood through other means, potentially setting a high bar for the party seeking to prevent procreation. Future cases will likely involve close scrutiny of evidence demonstrating such unique circumstances and the weighting of various competing interests, including potential parental involvement and financial obligations, highlighting the need for comprehensive initial agreements in fertility treatments.
