IVF Technology Can Create Reproductive Complications for Pennsylvania Divorcees

As times, culture, and technology continue to evolve new issues spring up in family law all the time, issues which move well beyond the standard concerns of child support, child custody, division of property, spousal support and division of debts. As Philadelphia family lawyers we find ourselves having to get versed in the ins and outs of protecting parental rights for same-sex couples, or single, unmarried couples. No judgments here; it’s just relatively new territory.

Now we’re looking at some even newer territory: what happens when disputes arise over preserved eggs and sperm, for example. Though the technology itself has been around since 1978, the legal battles created by the increased use of IVF are continuing to resolve themselves. Case issues have covered everything from the possibility that an IVF child could have more than two legal parents to whether children conceived via IVF are eligible for a biological parent’s social security survivor benefits.

In Arizona, legislation is under review that could allow strangers to have someone else’s biological children without the consent of the original donors, a situation that arose via a divorce case.

“The judge’s ruling surprised everyone, and not in a good surprisey kind of way. Instead of ordering that no one can use the embryos without the permission of the other, or ordering that the embryos should be destroyed, the judge ordered that the embryos be donated for someone else to use for conception! That ruling meant that Torres was not personally allowed to use the embryos to have her biological children, but that strangers who adopted the fertilized embryos could do so. “

Though the fate of the legislation is unknown and seems unlikely to be the kind of thing which might end up passing into widespread use it nevertheless indicates the kinds of twists and turns this area of the law could take.

Here in Pennsylvania the 2012 Reber v. Reiss case awarded pre-embryos to the wife, ruling these pre-embryos were the only way she was likely to attain parenthood (she’d had a breast cancer diagnosis, and was over the age of 40). She was free to use them without her ex-husband’s consent. The wife strengthened her case by expressing a willingness to protect her ex-husband from having to pay child support. This case essentially treated the pre-embryos as marital property.

If you wish to protect yourself in the event of a future divorce it would be wise to have an agreement between yourself and your spouse drafted prior to undergoing IVF, dispositioning what you both wish to happen to the pre-embryos in the event of a divorce.

If you have undergone IVF and are now seeking a divorce make sure the team at Sadek and Cooper knows when you come in for your free consultation. There are still many ways the law could start to shape itself both here in Pennsylvania and across the country. We need to know early if we should begin accounting for any pre-embryos you have, but we’re not afraid to tackle this exciting new area of unfolding case law.


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