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October 8, 2015
Legal Treatment of Frozen Embryos Upon Dissolution. Part 5 of 6.

For further information, please see Parts 1-4 for definitions, context, and discussions of the contractual and contemporaneous mutual consent approaches.   Again, our thanks to our law clerk, R. Benjamin Vojtik, for his hard work and excellent research on this topic.

The Balancing Approach.

The Court will enforce the contracts between the parties to a point, and then balance their interests in the absence of an agreement. The Court must weigh one party’s interest in procreation, with the other party’s interest to avoid unwanted procreation.


This method has been applied by three different states: New Jersey, Pennsylvania, and Tennessee.

In Reber v. Reiss (2012) 42 A.3d 1132, the Pennsylvania Court found that “the balancing approach is the most suitable test.” (Id at p. 1136). In Reber, Wife preserved several eggs before undergoing cancer treatments, which were fertilized with Husband’s sperm. The consent form provided that the pre-embryo would be destroyed after three years. During her cancer treatments, Husband left Wife and had a child with another woman. The parties filed for dissolution of marriage after Wife’s cancer treatments concluded, at which time she was infertile. Wife sought control over the pre-embryos, Husband sought their destruction or donation to science as three years had passed. The Court found that Wife’s interest in procreation outweighed Husband’s interest to avoid procreation, as she had no other means of reproduction.

In J.B. v. M.B. (2001) 170 N.J. 9 the Court found that if the parties found that “if there is disagreement as to disposition because one party has reconsidered his or her earlier decision, the interests of both parties must be evaluated.” (id at p. 30). In this matter, the Wife had a condition which kept her from becoming pregnant. The parties engaged in vitro fertilization, and froze several fertilized eggs. The first procedure was successful and Wife gave birth to a daughter. Upon separation, Wife stated that she wanted the pre-embryos discarded. Husband wanted the pre-embryos to be donated to other fertile couples. The Supreme Court found that Wife’s interest in avoiding procreation was greater than Husband’s interest in procreation. The Court further found that, absent the infertility of one party, the interest to avoid procreation would outweigh the other party’s interest in the pre-embryo. It is a noteworthy item, here, that Husband did not seek possession of the embryos for himself.

Davis v. Davis (1992) 842 S.W.2d 588, was a case in which the Husband and Wife had multiple unsuccessful IVF procedures. Many fertilized pre-embryos had been preserved at the time of dissolution. Husband wanted the pre-embryos to be discarded, while Wife wished to donate them to a third party. Davis, at p. 604-605, ruled that “disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends to merely donate them to another couple, the objecting party obviously has the greater interest and should prevail.” [emphasis mine]


The obvious benefit of this method is to provide the courts authority to determine the parties’ respective rights to the pre-embryo on a case-by-case basis. If one party relied on the other party’s representations that they would assist with the other’s reproduction prior to a procedure which would render that party infertile, the court would be able to then balance each of the party’s interests, rather than apply an strict rule which would deprive either of their reproductive rights.


The greatest critique of this method is the potential inconsistency. They claim it provides the courts with too much discretion, and the Court may arrive at a different verdict pending on the judge presiding.

At Hartley Lamas Et Al, we are of the opinion that the Courts who have applied this method have not left themselves overly-susceptible to inconsistent findings. The general rule that has been applied by the states employing this method is that the party seeking to reproduce must have no other possible means of reproduction in order to prevail. This is not a low standard, and must be established via evidence. Otherwise, according to the aforementioned caselaw, the party not seeking to procreate should prevail.

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