Dealing with infertility and assisted reproductive technology is overwhelming. Learning the acronyms (IUI, ART, IVF, ICSI) alone can seem daunting. Then there is the anxiety and fear that come along with the regular testing and attempted cycles. There is the emotion that accompanies the desire for a child. The women start to feel like they are a living science experiment and the men can feel powerless. Yet as intended parents trudge through the medical and laboratory bureaucracy, few think about the legal implications of the medical process.
In Pennsylvania, frozen embryos have been divided as a marital asset. The court appears to prefer a contract analysis. But, if there is not a contract the court applies a totality of the circumstances test. This means they look at all aspects of the intended parents before determining who should be awarded the pre-embryos in the event of a dispute. While the court would likely strongly consider awarding the pre-embryos to the intended parent who is not interested in pursuing parenthood, there is a case in Pennsylvania where the pre-embryos were awarded to the wife who wanted to use them. The wife had been rendered infertile after cancer treatments. The spouses had pursued IVF to preserve her fertility. The court determined that wife’s interest in a biological child outweighed the husband’s interest in not being a parent.
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