## Facts

- Husband and wife married in 2017 and pursued in vitro fertilization (IVF) using both parties’ genetic material.
- The IVF process cost about $20,000 and produced three pre-embryos: two viable and one non-viable.
- One viable pre-embryo was transferred to the wife, but the pregnancy ended in miscarriage.
- The remaining viable pre-embryo was cryopreserved at the clinic.
- In 2020, the husband filed for divorce and asked the circuit court to award him the cryopreserved pre-embryo so he could have it destroyed.
- The wife (age forty-three) sought possession to attempt pregnancy, offering evidence that fertility and IVF success rates decline with age and that risks of miscarriage and genetic abnormality increase.
- The husband testified he consented to IVF only to raise a biological child together and objected to the wife using the pre-embryo alone due to emotional and psychological concerns about having a genetic child.
- The parties agreed the pre-embryo would be treated as marital property subject to equitable distribution.
- The circuit court awarded the pre-embryo to the wife based on “equity,” without stating a specific analytic framework and without assigning a monetary value to the pre-embryo.

## Issues

1. What analytic framework should a court apply in a divorce dispute over disposition of a cryopreserved pre-embryo created with both spouses’ genetic material when no controlling agreement governs?
2. Did the circuit court abuse its discretion by awarding the pre-embryo to the wife without articulating and applying an appropriate framework?
3. After treating the pre-embryo as marital property, did the circuit court err by failing to assign a monetary value and consider a monetary award to account for the husband’s marital interest?

## Decision

- The Court of Appeals of Virginia reversed and remanded.
- The circuit court abused its discretion by awarding the pre-embryo based on an unstructured “equity” rationale rather than applying a defined legal framework.
- The appellate court adopted a balancing-of-interests approach for trial courts to resolve pre-embryo disputes in divorce when no controlling agreement dictates disposition.
- The circuit court also erred by failing to value the pre-embryo and consider an offsetting monetary award after the parties treated it as marital property.

## Legal Principles

- Cryopreserved pre-embryos occupy an interim category entitled to special respect due to their potential for human life, and they are not treated as ordinary chattel or as children.
- When no controlling agreement governs disposition, courts should resolve competing claims to cryopreserved pre-embryos through a structured balancing test that weighs each progenitor’s interests in procreation and in avoiding procreation.
- In balancing, courts may consider factors including: the objecting party’s interest in avoiding genetic parenthood; the requesting party’s realistic ability to achieve genetic parenthood by other means (including age, fertility, finances, and medical prospects); and the parties’ prior expectations or understandings even if not contractually controlling.
- The interest in avoiding procreation generally receives substantial weight because compelled genetic parenthood implicates autonomy interests beyond financial obligations.
- If a pre-embryo is treated as marital property for equitable distribution, the court must assign a value to the asset and account for each spouse’s marital share, including by considering a monetary award when awarding the asset to one spouse.

## Conclusion

The appellate court required Virginia trial courts, in the absence of a controlling agreement, to decide divorce disputes over cryopreserved pre-embryos using an articulated balancing-of-interests analysis and held that, once treated as marital property, the pre-embryo must be valued and incorporated into equitable distribution through an appropriate monetary adjustment.


Jessee v. Jessee, 866 S.E.2d 46 (Va. Ct. App. 2021)