Mar 29, 2022
Frozen Embryos are Marital Property
Marital property, for the purposes of equitable distribution in a divorce in Pennsylvania, is all property acquired by either party during the marriage and the increase in value of any non-marital property. Embryos, frozen during a marriage, are considered to be marital property. Therefore, this makes them eligible to be considered in the division of marital property. This a relatively unique issue in family law within Pennsylvania. The Pennsylvania Superior Court has released one decision on the issue in Reber v. Reiss, 2012 PA Super 86 where they applied a balancing approach. Other states have looked for a signed contract with a determination included or a contemporaneous mutual consent approach.
Michael Routh, an Attorney at Alpha Center for Divorce Mediation, discusses how embryos, frozen during a marriage, are considered to be marital property.
In deciding Reber v. Reiss, the Superior Court looked at how other states had decided these cases. First, they determined if there was a pre-existing contract in place which already determined the division of the embryos in case of divorce. State courts have been split on this issue with some considering the contracts to be valid, while other courts considered them void because they were in violation of public policy. Next, they considered the mutual consent approach, but it was evident the parties would not be in court if they were able to agree. Thus, the Court applied a balancing approach by looking at both parties’ interests in the property.
In Reber v. Reiss, the wife wanted to keep the embryos since it would be the only chance for her to procreate in the future, while the husband was against procreation with this property. The Court acknowledged they would normally side with the party against future procreation, but since this was the Wife’s only chance due to her medical condition, she would retain the embryos. The Court encouraged parties in the future to draft agreements outlining this specific issue to avoid future litigation.
Therefore, according to case law in Pennsylvania, it would be highly recommended to draft a binding contract as to how this property would be divided in case of a divorce. The contract would operate similarly to a pre-marital agreement. Courts in Pennsylvania would find this contract binding and not void due to public policy at this time.
Alpha Center for Divorce Mediation