I have reached that age where it seems that every doctor's appointment starts with the question "do you have children." The answer is no, which usually results in further discussion with my medical provider. I've been told by doctors that my fertility rate is declining, that it is very possible that I will struggle to conceive, and the worst, that should I become pregnant, it will be a geriatric pregnancy which could come with complications. When the doctor mentions "geriatric pregnancy," it feels like cold water is suddenly thrown on my face. First, I think I am far from "geriatric" and find that phrase offensive. Second, and most importantly, it is that comment which suddenly grips me back to reality about my fertility. I never truly thought would have any issues with conceiving. When I want to have babies, the babies will appear. However, with more and more women working and making their careers a priority, more and more women are delaying pregnancy. Suddenly, we are all 35 years old and starting, for the first time, to consider having children and then being told by the doctor that it might be more complicated than we originally expected.

The fact is that I am not alone in this struggle. According to a report issued by the U.S. Society of Assisted Reproductive Technology in 2015, approximately 1 million babies were born via assisted reproductive technology (ART) from 1987 through 2015, see 2015 Assisted Reproductive Technology: National Summary Report (Center for Disease Control et al. 2017). According to the Centers for Disease Control and Prevention, demand for ART has doubled over the past decade. With the growth in popularity of ART, especially IVF, comes a new issue for family law practitioners. When couples go through IVF, they generally obtain multiple embryos, either to be implanted now or to be cryopreserved for a later date and future children. When couples decide to divorce or separate, an issue arises as to what to do with the frozen embryos.

The question of how to divide embryos is one that is becoming more and more common and divorce attorneys need to educate themselves on this area of the law as it will likely arise as part of their practice. This particular area of the law is still relatively new, but this article explores what has occurred. First, we will look at the state statutes that have been enacted regarding this issue and whether those statutes are truly helpful in resolving  disputes. Second, we will discuss important caselaw on this topic and the different methodologies courts have applied. In the last section, we will discuss Pennsylvania caselaw and what to expect in future embryo disputes here in the commonwealth.

Statutes

As evidence of the fact that the answer to this question is unclear, states have taken various different position. A few states have passed statutes regarding the disposition of embryos at the time of divorce or separation, but generally those statutes are vague and, therefore, do nothing to prevent litigation.

California is one of the few states to have passed legislation regarding the disposition of embryos at the time of separation or divorce. Section 125315 of California's Health and Safety Code requires a physician to provide his/her patient "with timely, relevant and appropriate information to allow the individual to make an informed and voluntary choice regarding the disposition of any human embryos remaining following the fertility treatment."

This California statute provides the following options for couples in the event of separation or divorce: give the embryos to the female partner; give the embryos to the male partner; donate for research; thaw and take no further action; or donate the embryos to another individual or couple. The couple can also write in a different method of disposing of the embryos, but it must be clearly stated.

Most notably, though, is that the California legislature chose to include in this statute a penalty upon the physician for not providing this information to the patient. Under this statute, if a physician fails to provide this information, it constitutes unprofessional conduct. Id. However, there is no information available as to whether any physicians have faced any penalties under this statute. It is also worth noting the heteronormative language of the statue and the fact that it appears to exclude homosexual couples.

Florida also has a statute on the books regarding the disposition of embryos, eggs and sperm in the case of divorce or death or other unforeseen circumstance. Florida's Domestic  Relations Section 742.17 states that a "couple and treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and pre-embryos in the event of divorce, the death of a spouse, or other unforeseen circumstance." However, the statute also states that if there is no written agreement, "any remaining eggs or sperm shall remain under the control of the party who provides the eggs or sperm" and, with regard to pre-embryos, the decision-making authority regarding their disposition remains jointly with the couple. With that provision, this statute truly does not have teeth, resulting in the continued need for litigation for these disputes.

North Dakota also enacted a statute on point, but it is both confusing and complicated. Under N.D. Cent. Code Section 14-20- 64(1), "if a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child." The statute also allows for an individual to withdraw his/her consent to assisted reproduction in a record prior to the placement of the eggs, sperm or embryo. Should the consent be withdrawn, the party withdrawing consent will not be the parent of the resulting child.

A concern regarding the North Dakota statute is that it only mentions consent to assisted reproduction, but nothing about consenting to parenthood. The issue that brings cases to court is primarily the desire of one parent to use the embryos to procreate and the desire of the other parent for the embryos not to be used for future children. This statute appears to provide that the parent who wishes to conceive will prevail in those disputes, which then forces people to become parents against their wishes and violates their rights not to procreate.

Louisiana is the only state that has a very clear statute on this topic. In accordance with L.A. Stat. Ann. 9:123, "an in vitro fertilized human ovum exists as a jurisdictional person until such time as the in vitro fertilized ovum is implanted in the womb; or any other time when rights attach to an unborn child in accordance with the law." Louisiana prevents the use of embryos for research purposes or for destruction. If there is a dispute regarding the  frozen embryos, the "best interest of the in vitro fertilized ovum" shall apply. Under this statute, couples only have two options, implementation or adoption.

Case Law

As few states have enacted statutes and as most of those statutes are unhelpful, litigation is typically the only method to resolve these disputes. There are different theories on this topic as to how to determine the most equitable way to divide frozen embryos. The most straightforward theory is the contracts-based appropriate, which has been applied by several different courts. This approach is based on agreements parties enter into during the IVF process which state their intent for the disposition of the embryos upon death, separation or divorce. Let's look at that approach first.

The New York Court of Appeals utilized this approach in the case of Kass v. Kass, 91 N.Y.2d 554 (1998). The issue in dispute in Kass was the woman's desire to use the parties' five frozen embryos after the dissolution of the marriage and the man's desire to not become a genetic parent following the divorce. The parties signed multiple contracts as part of in vitro fertilization and the cryopreservation process.  Included as one of these contracts was an agreement that should the parties no longer wish to use the embryos for procreation or are unable to decide on the disposition of the embryos, the embryos may be "examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program."

The court of appeals determined that the main question to be answered is who has dispositional authority over the embryos. However, that question was answered by the parties' agreement. According to the New York Court of Appeals, agreements regarding the disposition of embryos should be considered valid and binding. While it is recognized that cryopreservation extends the viability of embryos and, therefore, allows times for minds to change, it is important to honor the parties' choice made prior to the arrival of any dispute, at a time where they were clear headed.  Additionally, if these agreements are not enforced, then they have no purpose. The court, therefore, held that the agreement clearly expressed the parties' intent to donate  the embryos to the IVF program for biological research.

However, there is case law that does not recognize these contracts. Another theory states that these contracts should be rejected based on a change in circumstances. This particular theory involves a balancing approach, balancing the harms occasioned by the objecting party against the harms of not taking the preferred action of the other party. Carl H. Coleman, Procreative Liberty and Contemporeous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L. Rev. 55, 81-82 (1999).

In the case of A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000), the court held that a consent form signed by a couple and the fertilization clinic was unenforceable. The parties in this case went through IVF several times and eventually gave birth to twins. As part of the IVF process, the parties were required to sign numerous consent forms. After signing the forms, the parties froze two vials of embryos for future use, but then the parties' marriage fell apart.

Prior to the parties' actual separation, the wife had one vial thawed and one embryo implanted, without the husband's knowledge. Upon the husband learning of the wife's action, he promptly filed for an injunction. Upon the initiation of that lawsuit, the court first turned to the contract titled "Consent Form for Freezing (Cryopreservation) of Embryos."

This contract, which was signed by both parties, stated that should the couple become separated, they both agreed to have the embryos returned to the wife for implantation. The trial court held that the agreement was not binding and the best solution was to balance the wife's interest in procreation against the husband's interest in avoiding procreation. In balancing those interests, the trial court found that the husband's interest in avoiding procreation outweighed the wife's interest to procreate and, thereby, awarded the embryos to the husband. The wife then appealed that decision.

The court of appeals determined that there was no evidence presented that the parties intended for the contract to be a binding agreement should they disagree regarding the disposition of the embryos. The court held that it could not be assumed that the parties intended for the contract to cover the frozen embryos four years after it was executed, especially in light of the fundamental change in their relationship. Ultimately, the court concluded that regardless of the issues with the contract, the court could not enforce a contract which forced the husband to become a parent against his wishes.

Another example of the balancing approach comes from New Jersey. In J.B. v. M.B., the New Jersey Supreme Court balanced the couple's interest and held that the burden of forcing the ex-wife to become a genetic parent against her desires outweighed the harm to the ex-husband if the embryos were destroyed. Of the most importance in this decision was the fact that the husband was able to have future children without these embryos. The court added to its opinion that this ruling does not apply to those cases where one party is infertile.

For those situations where only one parent has provided gamete material for the creation of the embryos, the case law favors the parent who provided the material. In the matter of Litowitz v. Litowitz, 102 Wash. App. 934 (Div. 2 2000), the parties received eggs from a donor, which were then fertilized with the husband's sperm. The parties implanted three embryos in a surrogate, which resulted in a child. The remaining embryos were then frozen, in hopes of future children.

The parties' marriage did not survive, however, and the wife sought to have the embryos awarded to her for implementation into a surrogate. The husband also wanted the embryos to give to an infertile couple for adoption. The trial court awarded the embryos to the husband and the wife appealed. On appeal, the court upheld the award of the embryos to the husband as he was the only gamete supplier. As such, he alone had the right to determine the future of the embryos. As the wife did not provide any gamete material, she did not have a constitutional right that needed to be protected. The husband, on the other hand, did provide material and therefore had a constitutional right not to procreate that must be protected.

Pennsylvania

Now, what is happening with this topic in Pennsylvania? The issue of distribution of embryos has arisen in the state of Pennsylvania, most notably in the matter of Reber v. Reiss, 42 7 A.3d 1131 (Pa.Super. 2012). In that case, the Pennsylvania Superior Court upheld the lower court's decision by applying a balancing test. In the matter, the wife was diagnosed with cancer. Prior to beginning any treatment, the parties were advised to go through IVF as it was likely that the wife would not be able to procreate after receiving chemotherapy. The parties, therefore, went through IVF and produced 13 embryos, which were frozen.  Eventually, the husband filed for divorce. The husband also began a relationship with another woman, with whom he had a child. Through the divorce process, the wife sought to retain all 13 embryos. The husband desired, instead, to donate or destroy the embryos. The Pennsylvania Superior Court applied the balancing approach. The wife has a strong interest as, due to her cancer treatment, she is unable to have biological children without the embryos. Therefore, these embryos are likely the only way the wife can have children.

The husband's interest, on the other hand, is that he opposes the wife's use of these embryos for procreation because he was adopted and would not want any of his children to not know his/her biological father. While this concern is reasonable, it is given less weight as the wife specifically stated that the husband could be involved in the child's life to the extent he wished. The husband is also concerned that this potential child would be a financial burden on him. However, the wife also vowed not to seek any support from the husband, which would then alleviate this concern. By balancing those interests, the Superior Court determined that the scales fell in favor of the wife.

As you can see, in the Reber matter, the balancing approach is the only method that was utilized by the Pennsylvania courts on this topic. However, the holding appears to be very fact specific. Would the court regarding the same decision if the parties already had a child? Would the court reach the same decision if mother was not infertile due to cancer treatment? As evidenced by the rulings in A.Z. v. B.Z. and J.B. v. M.B., when one party desires not to be a party and the other desires to be parent, the scales tip in favor of the person who does not wish to have a biological child. The analysis is that as long as the parent wishing to have a child has the reasonable possibility of having children through other means, then the party wishing to avoid procreation should prevail. See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). If the wife in Reber was able to have a child through other means, the weight would then have fallen in favor of the husband and the embryos would either have been donated or destroyed.

Now, the fact that the only precedent in Pennsylvania applied the balancing approach does not necessarily mean that the contracts parties entered during the IVF process suddenly have no meaning or enforceability. The holding in Reber is very fact-specific. With different facts, that contract could end up being the deciding factor. It is therefore still necessary for practitioners to get that information from their clients.

Where is this area of the law going to be in the future here in Pennsylvania? Well, that is hard to predict and it will depend on the facts of the case. However, with the consistent increase in the utilization of ART, this area of the law should grow. It is also likely that greater weight will be given to the emotional and physical challenges experienced by women during the IVF process. If, without the embryos, the only possibility for a woman to have a biological child is to go through the IVF process again, the struggles and challenges with that process will need to be presented to the court. For example, many women have to go through multiple rounds of IVF to conceive. The process is very stressful and does cause strain to any relationship. For some couples, those struggles might be what lead to the separation. All of this information is going to be more vital to the court as ART becomes more common and as the case law grows. That factor could potentially tip the scales in favor of the wife, but it is also important to remember that the right not to procreate is a significant right and it will take significant facts to push the scales in the opposite direction.

Conclusion

As is evident from the above, this area of the law is still developing, which means there are still a lot of questions left unanswered. For example, there is no available caselaw that deals with a homosexual couple where ART is the only mean to have children. I expect, though, that, in those cases, the courts will lean in the direction of the party who provided gamete material, such as in the case of Litowitz v. Litowitz, 102 Wash. App. 934 (Div. 2 2000). However, the fact that there have been no cases involving a homosexual couple shows that there is a still a great deal of growth to occur in this area of the law.

The cryopreservation of embryos creates complex questions that cannot necessarily be easily answered. A contract cannot provide a clear resolution, as is evident from the case law. However, the most important point to take away from this article is that these issues are becoming more common and attorneys need to be aware of that. Family law practitioners need to know whether their clients went through any fertility treatments to determine whether the distribution of embryos will need to be addressed. Attorneys need to understand their clients respective struggles with fertility, as well as review any contracts the couple signed regarding the distribution of embryos upon separation or divorce.

ART becomes more and more common with each passing year and these cases will become increasingly more common. Attorneys need to start learning the case law, so when that client walks through the door expressing concern regarding embryos, the attorney does not panic, but is instead in a position to advise the client appropriately. Practitioners need to have the knowledge and be ready to go when this case walks through the door. As for me, well, I suppose I'll continue to be told that any potential pregnancy will be "geriatric," but I'm not going to let that term control my decisions moving forward.

Melanie J. Wender, an associate at Curtin & Heefner, focuses her practice in all aspects of divorce and family law in Bucks, Montgomery, and Philadelphia counties.