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Assisted Reproduction

Pennsylvania Appeals Court Upholds Award Of Embryos To Wife

This anxiously awaited decision bucks the national trend and awarded custody of thirteen frozen embryos to a wife over the objections of her estranged husband. Ultimately I think this case will prove to be an outlier as courts in other states, facing similar conflicts between ex-spouses and the absence of any contemporaneous written agreement reflecting the parties intentions, will ultimately elect not to compel parenthood on an unwilling individual.

Issues like these are instructive and serve as an important reminder as to why anyone moving forward with assisted reproduction ought to have a Reproductive Estate Plan in place before any embryos are created. Having such a document prepared and executed, designed to address the disposition of the embryos in the event of death, incapacity or dissolution, would have avoided a case like this:

The Superior Court decision upheld a lower court, but ran counter to the small body of national case law on embryo custody. In six other states where high courts have grappled with disputes over frozen embryos, they concluded that parenthood should not be forced on an unwilling person. The Chester County couple, Andrea Lynn Reiss and Bret Howard Reber, underwent in vitro fertilization in early 2004 – three months after she was diagnosed with breast cancer at age 36 – because they feared cancer treatment would leave her infertile, according to court documents.

Thirteen embryos were created with her eggs and his sperm, then she underwent surgery, followed by eight cycles of chemotherapy, and 37 rounds of radiation. Reber filed for divorce in December 2006 and later fathered a child with another woman. Reiss, now 44, sought the frozen embryos in the division of marital property, the decision recounts.

The Court of Common Pleas in Chester County awarded the embryos to her in May. The court accepted Reiss’ testimony that her doctors had led her to believe she was infertile, even though she didn’t provide definitive medical tests. The three-judge Superior Court panel affirmed and quoted the trial court’s reasoning: “Because Wife cannot achieve genetic parenthood otherwise, we conclude that Wife’s interest in biological procreation through the use of these pre-embryos outweighs Husband’s professed interest against procreation.”

Cheryl Young, the Norristown-based attorney who represented Reiss, said Friday that her client was “very pleased” and “cautiously optimistic,” but realized the legal fight might not be over. Indeed, one of Reber’s attorneys, Elizabeth Gardiner of Philadelphia, said Friday: “It is my understanding he does want to appeal” to the Pennsylvania Supreme Court.

The Superior Court opined that the couple’s conflict could have been avoided if they had signed an agreement spelling out what to do with the embryos in case of divorce or death, or if the state legislature had passed a law addressing the issue. But even when such agreements or laws are in place, disputes over frozen embryos are an ethical and legal quagmire, said lawyer Jessica Arons, author of a report on the subject.

“This is such a complicated area of the law, and it’s still relatively new, and there are such compelling interests at stake,” said Arons, a reproductive-health expert with the Center for American Progress, a liberal think tank in Washington.

Florida and Louisiana are among the very few states that have laws related to embryo disposition, she said. Florida says that if a couple neglect to have a written agreement, they jointly share responsibility for deciding what to do – which isn’t much help if they disagree. Louisiana’s law, meanwhile, gives embryos the same legal rights as born children – a framework that could be challenged as unconstitutional, Arons said.

Of the disputes that have gone to court, the first was a Tennessee case, Davis v. Davis, decided in 1992. The Tennessee Supreme Court weighed the interests of both parties – a balancing test used by the Pennsylvania Superior Court in its decision. But Tennessee’s high court concluded that unwanted parenthood would be a greater burden for the husband than destroying embryos would be for the wife, who wanted to donate them to another couple. The court ordered the embryos destroyed, but also said it would have been a closer call if the wife sought to use the embryos herself.

In New York, Texas, New Jersey, and Iowa, state supreme courts said the couples should abide by written agreements in which they had specified that their embryos should be destroyed or donated to research in the event of death or divorce. However, justices in New York, New Jersey, and Iowa also said such agreements were not sacrosanct because people should be free to change their minds. “Circumstances change,” Arons said, “so what someone intended at the time the agreement was made may not be enforceable.”

In another case, the Massachusetts Supreme Judicial Court ruled that a couple’s embryo-disposition pact giving the wife custody was ambiguous, but that even if it weren’t, the court “would not enforce an agreement that would compel one donor to become a parent against his or her will.” “I don’t know if we can say there’s an emerging [legal] consensus,” Arons said, “but the courts have shown a lot of wariness when being asked to force someone to procreate.”

One reason for such wariness is that a biological parent can be forced to pay child support. Reiss and her lawyer tried to eliminate that concern by promising to do “whatever it takes” to absolve Reber of all financial responsibility for any child resulting from their embryos.

Again, the Superior Court judges tried to strike a balance. On one hand, they said, such promises are not enforceable because a parent “cannot bargain away that child’s right to support.” On the other hand, the question of support could be left open until it “becomes an actual case or controversy before the court.”


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