Frozen embyros are considered marital property and hence, technically up for division in a divorce, however there is some disagreement on exactly how the "property" should be dealt with. This is a relatively new issue in family law and different states have applied different methods for resolving the matter. The Pennsylvania Superior Court recently released a decision regarding the marital status of frozen pre-embryos in Reber v. Reiss, 2012 PA Super 86. In Reber, the court had to determine what should happen to the frozen pre-embyros of a divorced couple. Wife wanted to use the frozen pre-embryos in order to have children of her own whereas Husband wanted the frozen pre-embryos either destroyed or donated for research.
In reaching its decision, the Superior Court considered how other states have dealt with a similar issue. Some states have focused on whether there is a prior agreement between the parties concerning disposition of the pre-embyros in the event of divorce and if so, will uphold the agreement as enforceable. At the same time, other states have held that enforcing such an agreement is a violation of public policy and have declined to do so. The Supreme Court of Iowa follows a mutual consent model requiring both parties to agree on disposition, however, the Superior Court of Pennsylvania did not find this model feasible since parties would not be in court in the first place if they could agree. The approach that was ultimately adopted calls for the court to balance the interests of the parties.
In applying the balancing approach, the court found that Wife's interest in procreation using the frozen pre-embyros outweighed Husband's interest against procreation. This decision was based primarily on evidence that the pre-embryos were likely Wife's only opportunity to procreate along with testimony that Wife would allow Husband to be involved and wouldn't pursue support in response to the concerns raised by Husband. The court did acknowledge that the party against procreation should normally prevail in a balancing test, however, due to the unique facts of the case, the scales tipped in Wife's favor. It also seems that the court would've likely enforced an agreement on the issue if there had been one. Accordingly, parties who intend to undergo in vitro fertilization should draft a clear, unambiguous agreement as to the disposition of embryos upon separation, divorce or death, or else be subject to a balancing approach by the court.