Pa. Superior Court affirms trial court ruling in unprecedented case involving in vitro fertilization

A state appellate court has upheld a ruling by a trial court that awarded a Pennsylvania divorcee the frozen embryos that were created through an in vitro fertilization procedure before she and her husband split.

In a ruling filed April 11, the Pennsylvania Superior Court sided with Andrea Lynn Reiss in a case that pitted the two exes against one another over the issue of embryo ownership.

Reiss’ former husband, Bret Howard Reber, had appealed a May 2011 Chester County Court of Common Pleas order that awarded the frozen embryos to Reiss.

According to court papers, Reiss, at the time 36 years of age, was diagnosed with breast cancer in November 2003, a year after the couple married.

Doctors recommended that the couple undergo in vitro fertilization to preserve Reiss’ ability to conceive a child should the couple have difficulty conceiving following her cancer treatments.

The couple underwent the in vitro fertilization process in March 2004, which resulted in the production of 13 pre-embryos, the court record shows.

The pre-embryos were frozen and stored with the Reproductive Science Institute of Suburban Philadelphia.

After undergoing two surgeries and various rounds of chemotherapy and radiation treatments, the record shows, Reiss was tested and subsequently learned that she would not be able to bear children naturally.

On Dec. 28, 2006, her husband filed for divorce and subsequently went on to develop a relationship with another woman with whom he ended up having a child, court papers say.

Reiss, who is now 44, has no children, although she sought the 13 pre-embryos for implantation. The two parties and the trial court agreed that the pre-embryos were viewed as marital property “subject to equitable distribution,” the court ruling states.

What followed was an unprecedented Pennsylvania court battle over the pre-embryos; Reiss wanted to obtain them so she could get pregnant, and her ex-husband wanted them destroyed.

The trial court had concluded that while “ordinarily the party wishing to avoid procreation should prevail, in our balancing of the facts unique to this case, we find that Wife’s inability to achieve biological parenthood without the use of the pre-embryos is an interest which outweighs Husband’s desire to avoid procreation.”

Reber, the ex-husband, appealed the Common Pleas Court decision, arguing that the court erred in finding that Reiss’ interests in procreating outweighed Reber’s interests to avoid “unwanted” procreation.

While the Superior Court panel ended up siding with Reiss, it did note that the issue is one that has not been the subject of much court precedence.

“The cryopreservation of pre-embryos presents novel legal issues, ‘primarily because of the potential for the passage of several years between fertilization and later transfer and subsequent birth of the child,’” the ruling states.

The panel had to look to case law from surrounding states that have addressed similar issues, the ruling states. The case law shows that the various other states’ courts have conducted three types of analyses on the issue: the contractual approach, the contemporaneous mutual consent approach, and the balancing approach.

The first has to do with prior agreements between the parties regarding the disposition of cryopreserved pre-embryos. The Superior Court examined three cases where the various state courts held that signed agreements between the husbands and wives in which they agreed to destroy or donate to research the pre-embryos in the event of death or divorce were enforceable.

For the contemporaneous mutual consent approach, the court looked to an Iowa Supreme Court case in which the consent agreement allowed for the distribution of the pre-embryos only upon consent and agreement of both parties.

In that case, the wife wanted custody of the pre-embryos for implantation for herself or a surrogate while the husband wanted them to be donated to another couple.

The court ruled that it would violate public policy to enforce judicially “an agreement between a couple regarding their future family and reproductive choices.”

The court held that the best approach would be for the couple to draft a new, contemporaneous agreement, with the party opposing destruction responsible for storage fees.

As for the third approach, which deals with a court balancing the interests of the parties, the Superior Court panel looked to a case in Tennessee in which the couple, upon divorce, disputed who controlled the pre-embryos.

In that case, the Tennessee Supreme Court determined that a proper analysis required it to weigh the interest of each of the parties involved in order to resolve the dispute in a “fair and responsible manner.”

The court ended up ruling in favor of the husband in that case, who argued that he was “vehemently opposed to fathering a child that would not live with both parents” due to his own parents’ history of divorce.

In the present case, the court wrote that the trial court had applied the balancing approach since Reiss and Reber had not signed a consent form dealing with the disposition of the pre-embryos in the event of divorce or death.

The Superior Court decided to use the balancing approach as well.

In the end, the appellate panel decided that the trial court had not erred in its application of the balancing approach.

The judges wrote that unlike in the other cases that were examined, Reiss would be unable to procreate without the use of the pre-embryos due to her medical conditions.

The ruling also states that child adoption would not be the same thing as biological pregnancy, a determination that was made by the trial court as well.

“Thus, simply because adoption or foster parenting may be available to Wife, it does not mean that such options should be given equal weight in a balancing test,” the ruling states. “Adoption is a laudable, wonderful, and fulfilling experience for those wishing to experience parenthood, but there is no question that it occupies a different place for a woman than the opportunity to be pregnant and/or have a biological child.”

In the end, the panel affirmed the trial court’s ruling, concluding that Reiss’ compelling interests in using the pre-embryos, which included the fact that the pre-embryos were likely the only way Reiss could become pregnant, outweighed the interests of Reber, who wanted to destroy the embryos.

Reber had also argued that it would be against Pennsylvania public policy to force him to procreate with his ex-wife when he does not desire to.

“However, we agree with the trial court that Pennsylvania public policy is silent on the issue of forced procreation under these circumstances,” the ruling states. “There is no Pennsylvania case law at this time to guide us in these circumstances.”

The court wrote that a legislative remedy would likely be necessary.