## Facts

- Bret Howard Reber (Husband) and Andrea Lynn Reiss (Wife) married in 2002.
- In 2003, Wife was diagnosed with breast cancer; on medical advice, the couple pursued in vitro fertilization (IVF) before treatment.
- In 2004, thirteen pre-embryos were created using Wife’s eggs and Husband’s sperm and cryopreserved at a fertility clinic.
- Wife delayed cancer treatment to complete IVF, then underwent surgeries, chemotherapy, and radiation and was led to believe she could not conceive naturally afterward.
- Husband filed for divorce in 2006; during separation he had an intentionally conceived biological child with another partner and expressed an intent to have more children.
- Wife had no children and sought possession of all pre-embryos for possible implantation.
- The parties stipulated, and the trial court agreed, that the pre-embryos were marital property subject to equitable distribution.
- The trial court awarded all thirteen pre-embryos to Wife; Husband appealed.

## Issues

1. In equitable distribution, should cryopreserved pre-embryos be awarded to the spouse seeking implantation despite the other spouse’s objection to procreation?
2. When divorcing spouses dispute disposition of stored pre-embryos and no dispositive agreement governs, what framework should the court apply?

## Decision

- The Pennsylvania Superior Court affirmed the decree and equitable distribution order awarding Wife all thirteen pre-embryos.
- The court held that, on these facts, Wife’s interest in procreation and potential genetic parenthood outweighed Husband’s interest in avoiding procreation through these embryos.
- The court treated the dispute as property distribution informed by competing reproductive interests, without deciding personhood or metaphysical questions.
- Because clinic forms did not amount to a clear, enforceable agreement controlling disposition upon divorce, the court resolved the matter through an individualized balancing of interests.

## Legal Principles

- Where divorcing parties dispute disposition of cryopreserved embryos and no controlling agreement dictates the outcome, a court may apply a balancing test comparing the parties’ interests in procreation and in avoiding procreation.
- A spouse’s interest in using embryos may receive substantial weight when the embryos represent that spouse’s only reasonable means to achieve genetic parenthood.
- The objecting spouse’s interest may be less weighty when that spouse has other avenues to have genetic children or already has genetic children.
- In balancing burdens, a court may consider whether legal mechanisms can limit or eliminate unwanted parental status, responsibilities, or financial obligations for the objecting spouse.

## Conclusion

The Superior Court upheld awarding the parties’ cryopreserved embryos to Wife in equitable distribution, applying a balancing approach because no dispositive agreement controlled and because Wife’s likely last opportunity for genetic parenthood outweighed Husband’s objection to procreation under the circumstances.


Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012)